QUESTION “I have a great job which i need to keep to pay my bills i just recently got a 3rd dui and i wanted to know what is the possibility the judge will grant me house arrest if I have a full time job.”

ANDREW’S ANSWER You need a great lawyer here. Although there is some law that says we cannot avoid mandatory jail minimums in DUI cases, there is a fancy penal code and a different, even more exotic vehicle code section that allows a great defense lawyer to argue around jail in a 3rd time DUI. Nonetheless, we need mitigating material; first step is to enroll yourself in a treatment program, whether you feel you need it or not - this will increase the no jail odds.


QUESTION “Is the DUI arresting officer present during the court hearing? Will the arresting officer be present on my court date? DUI…”

ANDREW’S ANSWER The arresting officer will be present on court dates where the DA needs his or her testimony. Testimony is needed at jury trial and often before jury trial with respect to pre-trial motions.

Here are some examples of pre-trial motions where the cop could testify:

• Motion to exclude client statements under Miranda v. Arizona and via evidence code 402, • Motion to suppress evidence pursuant to penal code 1538.5 (illegal search/seizure) • Motion for sanctions due to a prosecution discovery violation; brought per penal code sections 1054.1/1054.5/1054.7. • Motion to dismiss, for example due to a speedy trial violation.

Your lawyer should advise you on your trial prospects as well as any viable pre-trial motions.


QUESTION “What is diversion? I have a misdemeanor theft case. Can I get diversion?”

ANDREW’S ANSWER Diversion is a program that diverts clients away from the criminal justice system; generally, clients can get their case dismissed on diversion if they successfully perform their diversionary terms. Diversion is available for a wide array of offenses.

Diversion is a reasonable possibility here, but, from my experience, whether you can attain diversion (through your lawyer) depends upon five general factors experience: (1) the DA who is handling the matter; (2) the jurisdiction (or bench officer presiding) in which you are prosecuted; (3) your criminal history; (4) the amount of loss the alleged victims sustained by virtue of the alleged theft; and (5) the nature of the evidence against the client.

Please note, that diversion can be pre or post plea. Pre-plea is more favorable than post because we can preserve all the constitutional rights an accused has with the exception of speedy trial (which the client waives for diversionary purposes). Pre-plea diversion or "informal diversion” at least in one circumstance, means that even if you mess up, you can still go to trial.


QUESTION “I am 17. The sheriffs caught me and my bf in the car doin stuff. We were just kissing in the car and the sherrifs caught us. He asked for our id and talked to us for a bit. Will i get an email? Will it show on my insurance that im on probation? They didnt say anything after they told us that we can leave so, what’s going to happen?”

ANDREW’S ANSWER If you did not sign a promise to appear (i.e., "receive a citation"), then forget about this. This happened to me when I was 17 and we received a curfew citation; that is more than you got, and trust me, that event has not seriously impacted my life, career, or overall mental well-being. Her parents of course were not pleased with me, but I’m pretty sure they have moved on.

Have fun, be safe and enjoy being 17.


QUESTION “I plead no contest on charges of welfare fraud and I got sentenced to 60 days(2days credit). How much of that time will I actually do?”

ANDREW’S ANSWER LA County used to be notorious for early release, but penal code section 1170.18 (prop 47) effectively changed that; now, my clients are often doing their full sentences (which in your case is 30 actual days less actual time served). There is no way to tell if the sheriff will release you early. The worst case scenario is 30 days.


QUESTION “I agreed to a bargain of a prison term and I got a strike, but I did not do anything wrong and I regret taking this deal. I was accused of ADW by a man who was stalking me. He called 911 claiming I was trying to run him over w my car and pressed charges. Which is false. He did it out of spite. There were no injuries. No evidence. My lawyer ran out on me. What can I do?”

ANDREW’S ANSWER What you are really asking is this: Can I withdraw my no contest or guilty plea? Before I answer, let me lay out the law; our legal vehicle is Cal. Penal Code 1018:

"...On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice."

It appears that the court entered judgment, to wit a prison term; this also means that your bench officer did not grant probation. Is 1018 still available for you? Yes, although section 1018 is limited on its face to the period before judgment, California courts allow the accused to move to set aside the judgment as a means of allowing the defendant to withdraw the guilty plea after judgment. See People v. Wadkins (1965) 63 Cal.2d 110, 113-114, 45 Cal.Rptr. 173, 403 P.2d 429; People v. Schwarz (1927) 201 Cal. 309, 314, 257 P. 71; People v. Caruso (1959) 174 Cal.App.2d 624, 633, 345 P.2d 282; People v. Grgurevich (1957) 153 Cal.App.2d 806, 810, 315 P.2d 391; People v. Smink (1930) 105 Cal.App. 784, 790, 288 P. 873.)

In short, you must show "good cause" to withdraw your plea and the court has the discretion to grant or deny your request; it appears that your section 1018 "good cause" basis may be factual innocence. Innocence is a proper 1018 "good cause" ground. Ordinarily, trial courts grant PC 1018 motions, “where there is doubt of defendant’s guilt.” See People v. Butler, 70 Cal.App.2d 553, 561, 161 P.2d 401 (1945) (holding that courts are generally liberal on motions to withdraw when the defendant supports his or her innocence); cf. People v. Beck, 188 Cal.App.2d 549, 10 Cal.Rptr. 396 (1961) (noting that doubt as to guilt is a proper PC § 1018 basis; but, the trial court did not abuse its discretion when it ruled defendant’s statements alone were not clear and convincing). You will have to prove that you are innocent by clear and convincing evidence; that is difficult whether you are innocent or not.

Please note: If you are successful in your 1018 motion to withdraw post-judgment (through your lawyer), then the case is open once again and you have the very same pre-guilty plea options - jury trial or negotiate. And, yes, you can always ask for an extension to surrender later, after your son's graduation. Good luck, I hope this helps. Andrew.


QUESTION “Can the prosecutor keep on refilling criminal cases? My brother got arrested 2 times in 6 months, for domestic violence with the same person, he has court again in 2 weeks …”

ANDREW’S ANSWER A misdemeanor case can only be filed once; if it is dismissed, then penal code 1387 bars any re-filing.

A felony matter, by contrast, can generally be re-filed such that the DA gets a second bite at the apple - again, penal code 1387.

Please note that the prosecution can file separate cases against your brother with the same victim, as long as the incidents are not part of the same occurrence (penal code 654).

In a felony case, your brother has the following time rights: (1) 10 court days from the time he is arraigned on the felony complaint to be brought to preliminary hearing; (2) preliminary hearing must take place within 60 calendar days from the time he is arraigned on the felony complaint; (3) prosecutor has 15 days from the time your brother is held to answer at preliminary hearing to file the information (formal charging document); and (4) bro must be brought to trial within 60 days from the date he is arraigned on the information. The DA can often get your brother all the way to the 60th day even if the alleged victim has been unavailable the whole time, including at preliminary hearing, via prop 115 hearsay testimony.

In a misdemeanor filing, your brother would have the right to a trial within 45 days from the time he is arraigned, assuming he is out of custody and decides to enter a plea of some sort; if your bro is in custody at the time of arraignment and plea, he is entitled to a 30 day trial window.

I hope those time rights help you consider the possibilities.


QUESTION “I was pulled over for DUI. What chance will I have with DMV to let me work during working hours. I heard there is an automatic 30 days suspension. I'm old and do not wish to give the City I work for a reason to fire me. Yes, I need an attorney...”

ANDREW’S ANSWER At this point, you would need your lawyer to request a "stay" on the administrative per se suspension and/or otherwise set the matter for a license suspension hearing to contest it. If we lose the suspension hearing, then we have to suffer 30 days of a "hard suspension", but after that the DMV should grant you a restricted license (to go to work, etc) so long as you pay fees and submit the DMV’s "SR-22" form (an insurance certificate).


QUESTION “What are the guidelines for making a domestic violence report/ obtain a restraining order. Is it based off more recent events of abuse /violence, or can it be based off past incidents. Do I Need to prove a pattern of behaviors?”

ANDREW’S ANSWER You should tell the police what happened and ask them to submit their reports to the local prosecutor. It is up to the prosecutor to then file criminal charges (typically PC 243(e)(1) or PC 273.5(a)) - the latter domestic violence charge involves traumatic injury and can be filed as felony, the former is a no-injury domestic battery misdemeanor).

You see, if the accused person faces criminal charges, then even an informal grant of court probation for the accused will include a protective order of some sort - any violation will subject the restrained person to a probation violation, jail and potentially new contempt of court charges. The criminal justice system is the quickest and most effective way to channel this type of behavior; plus, you do not have to hire a lawyer or pay anyone for this protection. The prosecutor and police officers will get paid no matter what, and this is their job. I'm sorry you are going through this. You should seek aid immediately. Good luck.


QUESTION “Will my juvenile son be prosecuted? My son and some kids went into an unoccupied property with a pool and went swimming. Afterward, one of the kids allegedly threw some items into this pool and now they all must go to court. Will I owe restitution? What will happen in juvenile court?”

ANDREW’S ANSWER The judge cannot order restitution absent an adjudication of guilt, whether via an admission or bench trial. The prosecutor will be looking for an admission from your son that includes an agreement to be liable for the damages. Note, that your son can request a hearing to contest the amount, even if your son admits to these allegations. If your son denies responsibility, he is entitled to a trial before a judge only; juvenile delinquency trials are called “adjudications”.


QUESTION “How long does my neighbor have to file criminal charges on me for destruction of property? I pointed a laser at my neighbors surveillance camera from inside my house and they say they have a video recording of me doing it.”

ANDREW’S ANSWER The first step in this analysis is this: Which offenses, if any, are chargeable here? California has no-laser pointing laws, but based on what you wrote, they wouldn't apply. For example, penal code sections 417.25, 417.26 and 417.27 prohibit pointing lasers at cars and particular people with the intent to annoy or scare; penal code Sections 247.5 and 248 talk about pointing lasers at aircrafts. Thus, based on what you wrote, California lasers laws don't apply.

But, we have penal code 594(a) - vandalism. That is potentially chargeable here. To find out the time limits or statute of limitations, we must look at penal code 801: This code says that a felony with a 3 year county jail maximum must be filed within 3 years from the offense date. You could only be charged with a felony vandalism if the amount of damage exceeds $400. If the amount of damage is less than $400, then the prosecutor can only file a misdemeanor - if that is the case, penal code 802(a) applies, which says that the misdemeanor must be filed within one year from the offense date.

Now, let me also explain something else: An individual person does not have the authority to file a criminal complaint. This individual person can only tell the police; the police then investigate, prepare a report and submit it to the local prosecutor. The prosecutor decides whether or not to file a case on you and they have either one or three years to do it depending upon the amount of damage here.


QUESTION “How and why can officially declared lost items get a person charged with receiving stolen property at the airport? The Airlines have been known to embezzle ways out of fare compensation. Situation: What they do is have passengers come in to settle for misplaced bags and or items that they didn't want to cover. I picked up lost items from the Airlines but I didn’t know these items were reported stolen. What can I do?”

ANDREW’S ANSWER Based on your assertions, you should have a great shot to beat your matter before a jury or otherwise. Get a custodian of records (through your lawyer) from the airline to introduce business records declaring the items in question as "lost" in their books.

And as far as your question is concerned: We often, as defense lawyers, ask ourselves why prosecutors file certain matters. The owner of the items in question must have informed the prosecutors that those items were stolen and in conjunction with that there may be some other allegations to support the notion that you had reason to believe the items were stolen. Those possibilities are mere speculation.

But, how can a prosecutor prove beyond a reasonable doubt that you knew the items were stolen when you were informed that they were officially lost or the holders of those items [here the airlines] told you that the items in question were "lost"? By the way what the airline tells you [e.g. the items are "lost" and not "stolen"] is not hearsay in a court of law because it explains your state of mind/knowledge, and is therefore admissible evidence.

All you can do is fight and make sure a good lawyer shows a prosecutor or jury if need be, that you were informed that these items were "lost" and in addition, the holders of these items also believed the items were lost. The clear defense is knowledge here.


QUESTION “How much time with my b do in state prison? He was sentenced to 2 years with half. And, will he do his time in county jail? He was been in jail since March 31st of this year. His charges where a misdemeanor dui and felony evading. He was sentenced to 2 years with half in state prison with 143 days time served. And by any chance will he do is time in the county jail?”

ANDREW’S ANSWER Standard felony evading is usually PC 2800.2(a): "2800.2. (a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison..."

That last clause above is important because of PC 17(a): "17. (a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170."

In order for county jail to be the house, 2800.2(a) would have to say "punishable pursuant to subdivision (h) of Section 1170" instead of "punished by imprisonment in the state prison." State prison it is.


QUESTION “Rights of a defendant in a criminal felony jury trial? When a defendant goes to trial on a criminal felony and the jury comes back deadlocked? With a verdict of 9-3, can the judge make them go back and deliberate again after they announce the verdict in the courtroom?”

ANDREW’S ANSWER A verdict is by definition, unanimous. Thus, 9-3 (in a criminal matter) means the jury is deadlocked or undecided. The judge absolutely can and will have the jury go back and deliberate further unless or until he or she is satisfied that there is no reasonable likelihood the jury can agree. If the jury stays deadlocked, whether 9-3, 8-4, 6-6, 11-1, and there is no way the jurors will come to a verdict, then we have a hung jury. A hung jury is typically a win for the defense even though the case starts all over (this is true for many reasons I can explain if you are interested). Note, that a defense lawyer should pop up and move for a mistrial as soon as it becomes reasonably clear that the jury is deadlocked even if the judge denies and keeps the jury in. Judges do not want a hung jury mistrial because they want the case to resolve itself and be over in one way or another (whether by virtue of acquittal, settlement, or conviction). This is why you may be seeing or hearing the judge pushing the jury to deliberate further despite the fact that the jury has already written the judge that they are undecided.


QUESTION “Is it much easier for a prosecutor to obtain a rape conviction when the defendant has a solicitation of prostitution conviction on his record? Rape is a touchy subject and is a horrible crime. However, not all cases are black on white. There are cases in which the accuser has lied about getting raped to obtain revenge or for other motives.”

ANDREW’S ANSWER Having a PC 647(b) solicitation of prostitution prior does not automatically change "everything" nor does it necessarily make it "much easier" for a DA to secure a rape conviction. I wouldn't characterize the 647(b) prostitution prior like this because we have too many variables.

Let me explain how having priors may or may not influence your case. First, we have the notion of merely having a record, or priors, so to speak and how this may or may not influence sentencing or charge bargaining. For example, a client with a rap sheet will usually have a more difficult time getting a plea bargain result (or sentence) on par with a no-record client facing the same accusations.

The second part deals with evidential admissibility - in other words, can the prosecutor introduce your prostitution prior at trial, and if so, for what purpose? There are two ways the prosecutor could try to introduce your prior 647(b): (1) in her case in chief to prove that you have a modus operandi or the intent to rape here (I am not saying this makes sense, I am only saying that this is one proper evidential purpose) under evidence code section 1101(b); and/or (2) in the defense case in chief, while you are on the stand testifying to show that you aren't a credible witness. A real deal lawyer who knows the evidence code should be able to file a highly persuasive motion in limine (pre-trial motion per evidence code section 402) to exclude your prostitution prior for all purposes. I have filed dozens and dozens of these motions and in similar capacities. I will tell you this: From my experience, most bench officers would exclude the 647(b) in the prosecution's case in chief, but teeter toward letting it in while you are on the stand; find a true cross-examiner, a lawyer who pounds witnesses on cross and often wins without putting up a case. I feel especially strong about having a "cross and close" style lawyer in a he said/she said case. If it is only her word against yours, than it is often wise not to testify and do what is necessary to blow up the witness on cross-exam.


QUESTION “Are sex offender and prostitution charges the same? I had a prostitution case, but does that mean I am a sex offender?”

ANDREW’S ANSWER Typically, in California criminal practice, "sex offender" means any person who has a suffered a conviction that requires registration pursuant to penal code section 290 et. seq.

Prostitution is punished primarily under penal code sections 647(b) (solicitation) and 653.22 (a) (loitering with the intent to solicit etc); both statutes do not mandate penal code section 290 "sex offender" registration upon conviction.

Therefore, even if you suffered a conviction here (which you did not), you would not be anywhere near a sex offender, both legally and sociologically.

Hope you feel better!


QUESTION “Is it possible for the criminal defense lawyer to get the 647b PC misdemeanor reduced to disturbing the peace as an infraction? The 647b PC misdemeanor case got filed and was not able to stop to be filed by my defense lawyer. The prosecutor or DA office filed the case. Is it possible for defense lawyer to fight the case to be reduced to disturbing as peace as infraction?”

ANDREW’S ANSWER Yes, but your lawyer has to get the PC 415 infraction (disturbing the peace) through the DA; the Judge can't infract a PC 647(b) or otherwise change the charge. If solicitation is alleged as the only 647(b) behavior, and the police did not record their conversation with you, then you have a great case. I've tried many of these and I have had great success. If your lawyer is a fighter, then you should get the results you are looking for.


QUESTION “Criminal protective order – domestic violence case filed & the order expires 2018; “comment NNC-NO NEG contact”. What does this mean? Is the protective order still valid?”

ANDREW’S ANSWER Generally, we have two types of protective orders in a domestic violence (DV) case: 1) post-conviction (PC 1203.097 or 273.5(j)); and/or (2) pending trial (PC 136.2). The fact that your criminal protective order expires in 2018 tells me that you have likely been placed on probation for something. The "comment" you are referring to typically means you are subject to a "Level One" order - peaceful contact only. Make sure you petition for early termination of probation (PC 1203.3) and dismissal (PC 1203.4) through your lawyer as soon as you finish everything on probation. Then, move to dissolve that protective order (through your lawyer) even though it is supposed to be dissolved on its own - they often erroneously linger in the system and create extreme inconveniences.