During the robberies, one of the suspects was wearing a security-type uniform and carried a handgun. The other suspect wore all black clothing and a jacket that said SECURITY. Santa Ana Police Commander said, “The suspects’ demeanor was that of police officers and the victims did not realize they were being robbed until the suspects fled with their money.”

Robbery, a felony, may be punished by 3 to 6 years in State Prison. California Penal Code Section 211 defines robbery as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. Fear means fear of injury to oneself or the person’s family or property or to someone in one’s company. The value of the property taken does not matter.

An important element for robbery to be established is force or fear. Only an experienced criminal defense attorney can present a robbery defense by demonstrating that no force or fear was used to take the property or to prevent the victim from resisting. See also Penal Code Sections 211, 212.5 and 213; Criminal Law Updates from the Law Offices of William W. Bruzzo (714) 547-4636

On November 4, 2014, California voters approved a voter initiative which requires that certain crimes MUST be filed as misdemeanors. This appears to be an effort by the state of California to reduce the number of people in the state prison system. From now on theft offenses for less than $950.00 must be filed as misdemeanors-even if the person has an extensive prior record of theft offenses. This is significant because a person can only be sentenced to one (1) year or less on a misdemeanor and he stays in the county facility where the crime was committed. Previously, three or more petty theft cases for very small amounts could land a person in prison under Penal Code Section 666. However, that is no longer the case and the person cannot be sentenced to more than one year and cannot go to prison no matter how many petty theft cases he has under Proposition 47. Notably, the maximum jail penalty on a petty theft is 6 months, so from this point on it would appear that no matter how many prior petty theft convictions you have, as long as they are under $950.00, you cannot be sentenced to more than 6 months in jail.

Notably, if you are in prison for multiple petty thefts or grand thefts and the last case that sent you to prison involved a value of less than $950.00, you can be resentenced on this matter, meaning that the court will review the case and remove you from state prison and have you serve more than likely a much shorter sentence in the county jail. There may be some exceptions to this if you have prior violent convictions. The law is still being fleshed out but you can petition to have your case reviewed IMMEDIATELY if you fall into any of these categories. The only exception to that is if the court finds you are public safety risk. The definition of that seems vague and would probably be a determination made by the Judge.

Also drug offenses wherein the person is only charged with personal use because he only has a personal use amount on him, MUST now be filed as a misdemeanor. Meaning, once again that the person cannot do more than one year in jail. Previously, an individual was facing a maximum of 3 years on possession of a personal use amount of any controlled substance except for marijuana possession for personal use which has always been a misdemeanor and sometimes an infraction.

So for example, possession of methamphetamine under Health and Safety Code Section 11377(a) can only be filed as a misdemeanor; normally it is filed as a felony although it can be filed as either. Where this new law will really make a difference is when people are charged with possession of cocaine or heroin under Health and Safety Code Section 11352(a) which previously was only filed as a felony. Now those individuals are only facing misdemeanors which reduces their exposure to a year in county jail.

What will be interesting to see is what happens to people in the Penal Code Section 1210 program also known as Prop 36. It was the case that multiple fall outs from the program for personal use alone could land you in prison. However, under this new law it seems like the most the court can do for fall outs from possession for personal use is sentence the person to one year in county jail.

For first time offenders Prop 47 will have little practical effect but for individuals with multiple convictions this law could make a huge difference in their sentence. Please contact Attorney Will Bruzzo if you have any questions about your particular situation.

Many people convicted of crimes who are not American citizens find that certain convictions can prevent them from becoming citizens or at least make it much more difficult to do so. Generally, but not always, felony convictions having to do with violence, drug sales and other offenses can cause an individual to have great hardship in this regard even though many years have passed since the offense occurred.

Immigration Attorneys who are representing individuals with criminal convictions that are blocking progress toward citizenship may direct their clients to contact a criminal defense attorney to see about vacating (removing) the conviction so that the conviction is no longer a hindrance toward obtaining citizenship.

A criminal defense attorney can look to see whether there was a mistake made in the underlying case. For example, was the Defendant properly advised of the maximum punishment he was subject to? Was he properly advised of his trial rights? And finally, was he properly advised as to the immigration consequences?

Any one of these issues can lead to the conviction being vacated. An experienced criminal defense attorney should be able to examine the guilty plea forms and the advisement of rights and make a determination whether there is a flaw which may permit a successful motion to vacate the conviction or a withdraw of the guilty plea.

Even if the Defendant appears to have been properly advised as to his rights, an attack may be made on the advisement of immigration consequences. The United States Supreme Court held in Padilla v. Kentucky that even if the court does advise the Defendant that deportation is a possible consequence, that advisement is not necessarily sufficient. The Defendant must be properly advised by his criminal attorney at the time as to his particular potential immigration consequences.

The idea being that the Supreme Court does not think a boilerplate advisement of consequences is sufficient and that the Defendant is entitled to an informed discussion on whether his particular circumstances are such that with a guilty plea he will in fact be subject to deportation or other immigration consequences.

Penal Code Section 1016.5 specifically states what the immigration advisement must be for cases after 1978. It reads as follows:

If you are not a citizen, you are hereby advised that conviction of this offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. 

Notably, some older cases do not contain this language in its entirety and as such the conviction may be overturned and the case dismissed. As mentioned above, even if this advisement is properly administered to the Defendant he may still challenge the conviction on the ground that the advisement was not sufficient because his lawyer at the time did not properly advise him on his particular immigration situation.

The US Supreme Court held that taking DNA from those arrested for “serious” offenses is constitutional and is in the same vein as taking fingerprints and photos of arrestees. In Maryland v. King, the Defendant was arrested on a felony and a DNA swab of his mouth revealed he was the previously unknown assailant in a rape case 6 years earlier. He was eventually convicted of the rape charge. That Defendant challenged the constitutionality of his DNA being taken from him without consent pursuant to the 4th Amendment of the Constitution.

The Court held that the DNA swab was not a violation of the 4th Amendment because it was not intrusive as a cotton Q-tip was used to gather saliva from inside the cheek of the arrestee. Also, the DNA was used for the legitimate Government interest of identifying the arrestee so he could be properly housed in the jail based on his threat level which could be ascertained most accurately from DNA revealing his criminal past. The Court held that this legitimate Government interest outweighed the privacy rights of the individual. The Supreme Court limited collection of DNA samples to those arrested for “serious” offenses. The California DNA Collection Act limits collection to those arrested for felonies which seems to be in keeping with the Supreme Court decision.

Notably, the Supreme Court requires the destruction of DNA evidence if the person is not convicted of the offense and DNA evidence may not be entered into a national database unless a conviction occurs.

California courts require that the Defendant give DNA as part of a felony conviction and in Orange County many negotiated dispositions on misdemeanor cases result in the Defendant giving his DNA to the local Orange County DNA data base which may be searched by law enforcement agencies in the state and across the country.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636

Related Articles

• Supreme Court Says Police Can Take DNA Swabs From Arrestees (baltimore.cbslocal.com)
• Police can take DNA swabs from arrestees (kvue.com)

Misdemeanor cases affected by the speedy trial clause of the US and California Constitution are controlled by the case of Serna v. Superior Court (1985) 219 Cal Rptr 420. The typical situation that deals with a speedy trial right is when a Defendant is arrested for a crime but the District Attorney does not file by the time indicated on the notice to appear. Then, either the Defendant never receives the letter with the new court date or ignores it. Sometime after a year post-arrest the Defendant gets picked up for a new crime or traffic matter or some other random police contact. Once a year has passed since the crime was committed and the crime is filed as a misdemeanor the speedy trial right for misdemeanors in California arises. Both the Federal Constitution and the California Constitution play a role. Because more then a year has passed, it is presumed that the Defendant has suffered prejudice. As such, the burden shifts to the Prosecutor to justify the delay. The court at that point considers the reason for the delay and also weighs the factors laid out in Barker v. Wingo, (1972) 407 U.S. 514, 532, 33 L. Ed. 2d 101, 118: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. As a practical matter on misdemeanors, it is rare when the Prosecution has done more then send a letter to the last known address. As such, if more then a year has passed on a misdemeanor, speedy trial motions are usually granted depending on the jurisdiction.

Felony cases are more difficult to win on the speedy trial issue. Part of this is because more time must pass as the minimum statute of limitation on a felony is at least three years or longer as opposed to a misdemeanor where allegations can only be brought within one year. People v. Martinez (2000) 94 Cal Rptr.2d 381 is generally considered the controlling California case on speedy trial issues for felonies. Felonies themselves must be split into two different types for speedy trial consideration.

1. Pre-preliminary Hearing Cases: In these felony cases because the case does not end in a trial only a hearing the Federal Constitutional safeguards are not covered. Thus, there is no presumed prejudice, actual prejudice must be shown and the Wingo, factors are considered.
2. Post- Pre-liminary hearing cases: The rationale for Martinez and Serna, would seem to indicate that prejudice is presumed for felonies post-preliminary hearing since the Federal standard would apply, however, the precedent is unclear here. Also some cases have held that actual prejudice will only be considered after trial which seems to indicate there is no presumed prejudice.

Will Bruzzo has managed to get many cases dismissed on the basis of a violation of the speedy trial right.

The new theft case brings Ms. Lohan’s legal problems up a notch because now she can be charged with a felony and faces a maximum of three years in prison for the offense. While it is very unlikely that she would serve anything close to the maximum time in prison, her past record of violating her probation and generally failing to comply with the terms of her probation could subject her to a much harsher sentence then a first time theft offender. See Penal Code Sections 459, 487(a), 240-242.

A Medicare fraud case involving Santa Ana gang members and a Long Beach man, Michael Martinez resulted in a 10 year prison sentence for the latter. Martinez pled guilty to a felony as part of a plea deal according to the Orange County Register. Of the 20 co-defendants in the case, six of them were Santa Ana gang members that acted as owners of a supposed medical supply company. Each of them was paid $5,000 for participating in the scheme. Claims were then filed to Medicare for hoax orders of wheelchairs and hospital beds totaling $11.2 million. Sentencing for Martinez is on July 17th of this year.

19-year-old Daniel Moreno has been charged with cruelty to animals for stomping on a California brown pelican’s beak at Newport Beach pier after it tried to take his fish. Under California Penal Code Section 597, the offense may be filed as a misdemeanor with up to one year in jail or a felony carrying prison time, both with maximum fine of $20,000.

After the incident, the pelican was taken to the Huntington Beach care center, where it is now recovering from a broken beak. Moreno was taken into custody for his actions. He is scheduled to appear in court in Orange County on April 5th.

A Battery occurs whenever one person touches another without consent. A Battery can be charged as a misdemeanor or a felony. The amount of injury to the victim will usually decide whether the case is charged as a felony or a misdemeanor. Here is one client’s experience facing a battery charge in Orange County:

“I was charged with Assault on a Peace Officer (Penal Code Section 241(b)); Battery on an Officer(Penal Code Section 243(b))and Resisting Arrest (Penal Code Section 148(a) (1)). These charges occurred as a result of an altercation I got into with a Police Officer in Orange County. I was looking at up to one year in jail for these offenses. I hired William W. Bruzzo to represent me because of his reputation and his familiarity with the courts in Orange County. I told Mr. Bruzzo that not only did I not assault the officer in question but that he assaulted me without reason or provocation. I realized that for the most part it would be my word against the officer’s. Mr. Bruzzo took my case and began investigating the officer by filing motions which requested the personnel records of the officer in question. The County of Orange fought to keep the records from being revealed but Mr. Bruzzo won in the end. The personnel records of the officer in question revealed that he had had problems with violence in the past. Mr. Bruzzo used this information in his negotiations with the District Attorney. In the end, the District Attorney agreed to DISMISS all the charges against me! I am very grateful to Mr. Bruzzo for his work and I would enthusiastically recommend him for any criminal matter.” ~ WR, 01/15/2010

Notably, while these charges usually concern “street drugs” like Cocaine and Methamphetamine they can also apply to substances commonly thought of as medications.

If you are found in actual possession of the drug or “constructive” possession of the drug you may be found guilty of the offense. Constructive possession means that the drug may not be on your person but you knowingly exercise control over or the right to control the drug, either directly or through another person or persons. In order for the prosecution to prove its case they must show that the person knew the substance was a controlled substance and that there was enough of the drug to constitute a usable amount.

In California this offense is a felony and you may face up to three years in prison. Here is a recent case result:

“I was charged with Health and Safety Code Section 11377(a)(Possession of a controlled substance HS 11377(a)a felony which carries a maximum of 3 years in prison. I had previous convictions for the same charge and I had similar charges pending. I was also charged with driving on a suspended license (Vehicle Code Section 14601.1 – VC 14601.1) and possession of paraphernalia (Health and Safety Code Section 11364 – HS 11364(a)) as misdemeanors. I hired Mr. William Bruzzo because he was recommended by another attorney and because of his familiarity with the Orange County courts and the District Attorney. The original offer prior to hiring Mr. Bruzzo was 180 days in jail and pleading guilty to a felony. Mr. Bruzzo convinced the District Attorney there was not a useable amount of the controlled substance and that my driving on a suspended license was justifiable by Necessity, even though I had priors [convictions] for [that charge] too. Mr. Bruzzo got the possession charge DISMISSED [Health and Safety Code Section 11377(a) – HS 11377(a)]and the Vehicle Code Section 14601.1 [Driving on a suspended license – VC 14601.1] DISMISSED. I pleaded guilty to one count of possession of paraphernalia as a misdemeanor [Health and Safety Code Section 11364(a) – HS 11364] and I got CAL TRANS [instead of jail]. I would enthusiastically recommend Mr. Bruzzo for any possession of a controlled substance case or any criminal matter.” ~~ CK, December 9, 2009

The week prior to Thanksgiving someone apparently intentionally set a fire in the men’s restroom of the Orange Public Library. Fortunately, no one was hurt, but the building was evacuated and the restroom sustained some minimal damage. The fire is under investigation.

California Penal Code Section 451 states, “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.”

So, to prove that someone is guilty of the crime of arson, the State must prove that (1) The defendant damaged or destroyed with fire all or part of something; And (2) The defendant acted on purpose intending to defraud, annoy, or injure someone else.

Arson includes burning someone’s clothing or trash not belonging to anyone. The punishment for arson varies depending on what damage results from the fire. The crime can be charged as a felony punishable by imprisonment in the state prison for five, seven, or nine years if great bodily injury results. Arson of property (not one’s own) is a felony punishable by imprisonment in the state prison for 16 months, two, or three years.

The head of the Boys & Girls Clubs of Tustin, California in Orange County, Clifford Polston, pled guilty to grand theft for stealing more than $114,000 from the group. The Boys & Girls Club of Tustin, which provides a safe place for youth to learn and grow, was shocked over the recent turn of events.

Polston took $6,323 in unauthorized car allowance and paid $75,000 to his wife for a fictitious job that he created. Now, as punishment for his crime, he has to repay $137,000 to the Boys & Girls Clubs of Tustin plus ten percent interest using proceeds from a life insurance policy purchased for him by the Club. Former mayor Tracy Worley Hagen said she feels “terrible” because she thought “he was doing a great job for the community”, but she is “happy he’s going to try to make it right with the Boys & Girls Club.”

Grand theft, what Polston pled guilty to, differs from petty theft in that the value of the property stolen exceeds $400. Here, Polston stole well above that amount and received an enhanced sentence because of it. Typically, felony grand theft, defined by Penal Code Section 487, carries a maximum sentence of three years State Prison. However, in Polston’s case, he was looking at a maximum of four years State Prison.

Every hit and run case will have a slightly different outcome for the accused. Seeking legal representation or not can mean the difference between home confinement versus prison for a hit and run violation. Today we bring you a new testimonial from our client accused of four felony counts and facing a five year prison sentence.

“I was charged with felony hit and run (Vehicle Code Section 20001(a)) and three additional counts of felony reckless driving (Vehicle Code 23105(a). [Maximum Prison time of 5 years] I was alleged to have driven in a reckless manner injuring my four passengers and then left the scene. The District Attorney initially wanted to send me to prison. I hired Attorney William Bruzzo to represent me in this matter as I know he is an excellent attorney who fights for his clients. Mr. Bruzzo fought very hard for me with the result that I got the felony hit and run (Vehicle Code Section 20001(a) DISMISSED; I pled guilty to one count of reckless driving (Vehicle Code Section 23105(a) and I was permitted to do my time on home confinement. This was a very good result and I am very grateful to Mr. Bruzzo. I would enthusiastically recommend him for any criminal matter.” ~~ KA 11/13/2009