Miranda Rights Part 1

Case Name: People v. Thomas , CalSup , Case #: S067519

Opinion Date: 7/23/2012 , DAR #: 10085

Case Holding:

The rule of Edwards v. Arizona (1981) 451 U.S. 477 does not preclude questioning about a different criminal investigation after the suspect reinitiates contact with police. In this death penalty case, appellant moved to exclude statements as violative of Edwards; the motion was denied and the statements introduced at trial. Affirmed. Thomas turned himself in to Oakland police about a murder at a BART station. He was already a suspect in an attempted robbery being investigated by Hayward police. During questioning about the attempted robbery, appellant invoked the right to counsel and the police terminated the interview. He later reinitiated contact with a detective. Appellant indicated that he had invoked his right to counsel, he had spoken to an attorney, and he now wanted to talk and set things right. He was advised of his Miranda rights again and he confirmed several times that he now wanted to talk without counsel present. He then discussed the attempted robbery. Two days later, sergeants investigating the BART murder met with appellant. They advised him of his Miranda rights without mentioning what specific case they were investigating. Appellant waived his rights and ultimately made incriminating statements about the BART murder. The Edwards rule did not preclude introduction of the statements. There was no indication of police badgering; there was no reason to doubt that Thomas could have invoked his right to counsel since he had previously stopped the interrogation by that means; and, there was no affirmative limit to questioning as Thomas had reinitiated it. The purpose of the Edwards rule would not be served by excluding appellant's confession. His failure to mention other crimes could not be understood as an assertion that questioning about other crimes would be off limits.

If you are arrested, invoke your Miranda rights as soon as humanly possible. Under Miranda, if you are detained, the police agency must read you your Miranda rights before speaking to you. These rights are; the right to remain silent, anything you say can be used against you, you have the right to an attorney, if you cannot afford an attorney one will be appointed to you. Then the police will ask you if you understand and give up these rights.

If you invoke your Miranda rights, the police cannot talk to you until a lawyer is present, and in all actuality, they will just stop talking to you. It's rare that I'm called to a police station, or jail to resume questioning when a client invokes Miranda. But in the event that you do invoke Miranda NEVER EVER GIVE UP YOUR MIRANDA RIGHTS AFTER YOU INVOKE. In the case above, the defendant properly invoked his Miranda rights and then gave them up and gave incriminating statements about a murder case he was a suspect in. He might very well be not serving a life sentence at this time had he merely invoked his rights to remain silent and just kept his mouth shut.

To get a family member to keep his mouth shut in the case he is arrested contact me right now. I will answer the phone.

George Derieg attorney at law
www.eastbayattorney.com

510-355-2747

Jail Phone Calls

Case Name: U.S. v. Valdes-Vega , 9 Cir , Case #: 10-50249

Opinion Date: 7/25/2012 , DAR #: 10223

Case Name: People v. Jones , District: 2 DCA , Division: 5 , Case #: B233204

Opinion Date: 7/23/2012 , DAR #: 10217

Case Holding:

The forfeiture by wrongdoing doctrine is not limited to statements by victim witnesses who were murdered to prevent their testimony. Appellant was charged with assault, grand theft, and criminal threats against his former girlfriend's friend. The former girlfriend was subpoenaed to testify at a hearing on the admissibility of evidence that appellant choked her in 2009. She had previously told a detective that she ended her relationship with appellant because of physical violence between them, that she was afraid of him, and that he made incriminating statements to her on the date of the charged crimes. After she failed to appear, a body attachment was ordered but the prosecution was unable to locate her. Inmate phone records showed that appellant had called her a dozen times, they spoke for over 10 hours, and portions of the recorded calls demonstrated his intentional efforts to dissuade her from testifying. The trial court admitted her statements based on the forfeiture by wrongdoing doctrine. (Evid. Code, § 1390; Giles v. California (2008) 554 U.S. 353.) Affirmed. While the former girlfriend’s statements to the detective were testimonial, the Sixth Amendment right to confrontation did not bar admission of the statements in this case. One who obtains the absence of a witness by intentional wrongdoing forfeits the constitutional right to confrontation of the witness. The "wrongdoing" is not limited to killing victim witnesses, as appellant argued. The doctrine applies to statements by corroborating witnesses whose testimony was prevented by means other than murder. The trial court did not err in admitting the statements.

 

It is so very important to hire an attorney if your loved one is in jail. The first thing I tell a prospective client or prospective client's family member is to not discuss the case either while visiting the inmate, or over the phone. Even when I contact a client in jail, I always first say into the phone that I am an attorney and any recording of this confidential attorney client conversation is prohibited by state and federal law. Every phone call that comes out of the jail is recorded, the case above could have come out differently if the inmate had not used the telephone to convince his former girlfriend from testifying.

If your loved one is in jail, contact attorney George Derieg immediately for aggressive knowledgeable representation.

 

George Derieg, Attorney at Law

Affordable, Aggressive Representation

www.eastbayattorney.com

510-355-2747

California Penal Code section 4530, Escape

Case   Name: People v. Bailey , CalSup , Case #: S187020

Opinion Date: 7/12/2012  , DAR   #: 9562

Case Holding:

Under the particulars of this   case, because attempted escape is not a lesser included offense of escape, the   appellate court, after finding insufficient evidence to support the escape   conviction, cannot modify the conviction to attempted escape. Appellant   was charged with a violation of Penal Code section 4530, subdivision (b) (escape   from custody), with the information alleging appellant "did willfully and   unlawfully escape and attempt to escape." The evidence revealed that appellant   made it past several interior prison barricades but ultimately did not make it   past a final barricade. The prosecutor informed the court that she was trying   the case as an escape, although there was sufficient evidence to support an   attempted escape. The parties agreed to instruct the jury only on escape. The   court informed the jury that escape is a general intent crime and the evidence   need not show that a prisoner left the outer limits of the institution's   property, only that he passed beyond some barrier designed to keep a prisoner in   a specific area. The jury convicted appellant of escape. The appellate court,   relying on People v. Lavaie (1999) 70 Cal.App.4th 456, which requires   an escape from the actual outer boundary of the prison facility, found   insufficient evidence to support the escape conviction and, under Penal Code   sections 1181, subdivision (6) and 1260, determined that it had no authority to   modify the conviction to attempted escape. The Supreme Court agreed with the   lower court's finding that the conviction could not be modified because, under   the elements test, attempted escape, with its requisite specific intent, is not   a lesser included offense to the general intent crime of escape. (People v.   Smith (1998) 64 Cal.App.4th 1458.) An appellate court may make a   modification by applying the established law to the existing facts found by the   jury, not by finding or changing any fact. Here, because the case was tried   solely as an escape, the jury was never required to make a finding of specific   intent, a required element of attempted escape.

If a family member is being charged with escape under California Penal Code section 4530, make sure you hire a lawyer who understands what this charge means, and how this above case affects your case. You need a lawyer who knows his/her way around a courtroom, and who knows when to object and what to fight in court to maximize your chances of a positive result.

George Derieg, Attorney at Law, is the lawyer you need in this situation. He has a supreme amount of courtroom and specifically jury trial experience. Call the Law Office of George Derieg today for a free consult.

510-355-2747

www.eastbayattorney.com

California Penal Code section 288.4

Case   Name: People v. Yuksel , District: 2 DCA , Division: 8 , Case #: B231571

Opinion Date: 7/11/2012  , DAR   #: 9550

Case Holding:

Despite references to both   child and minor, Penal Code section 288.4 (arranging a meeting with minor for   lewd and lascivious behavior) applies to any child under the age of   18 years. Appellant, having exchanged sexual messages with a police   decoy portrayed as a minor, and then arranging a meeting, was charged with a   violation of Penal Code section 288.4. At trial, he unsuccessfully objected to   the court's jury instruction defining a "child" as any person under the age of   18 years. Affirmed. The Legislative history for section 288.4 reveals that its   provisions were drawn from Penal Code section 647.6, which prohibits a person   with an abnormal sexual interest in children from annoying or bothering any   child under the age of 18. With reference to this history, it is clear that the   two words in section 288.4, child and minor, refer to the same thing; i.e., a   child under the age of 18.

An expert's reliance on hearsay in   formulating his opinion does not necessarily make the hearsay   admissible. The trial court permitted a defense expert to testify to   his opinion that appellant was not a pedophile but excluded appellant's   statements to the expert that he had no prior behavior of such a nature. The appellate court found that the trial court did not abuse its   discretion under Evidence Code section 352 to exclude the evidence because the   trial court deemed it to be unreliable under the circumstances.

If you are charged with violating California Penal Code section 288.4 you must hire an attorney immeidatley. The Law Office of George M. Derieg has valuable experience litigating these cases, even up through jury trial. You need a lawyer who is battle hardened, not afraid to fight for you when you need it most.

George Derieg Attorney at Law

510-355-2747

www.eastbayattorney.com

California Penal Code section 69

Case Name: People v.   Nishi , District: 1 DCA , Division: 1 , Case #: A129724

Opinion Date: 7/13/2012  , DAR #: 9687

Case   Holding:

A warrantless search of a campsite does not violate the   Fourth Amendment when a person is not legitimately on the premises and is aware   that occupying the premises without consent is illegal. In 2010,   appellant sent e-mails to the Department of Defense complaining that Department   of Fish and Game personnel had unlawfully shot protected mountain lions and that   he was armed and would fire on all sheriffs and Fish and Game personnel. The   e-mail was forwarded to local agencies who advised their staff to take   precautions. A deputy sheriff located appellant on a preserve and arrested him.   Appellant's campsite was searched and shotgun shells were located and seized   from a tarp surrounding the tent. The warrantless search did not violate the   Fourth Amendment. Appellant had no reasonable expectation of privacy because he   was not lawfully or legitimately on the premises. Camping on the preserve was   prohibited without a permit and appellant did not have one. Because he   previously had been cited for illegal camping and evicted from other campsites   in the preserve, he was conscious of the illegality. Appellant was not in a   position to legitimately consider the campsite as a place society recognized as   private to him.

Substantial evidence supports a Penal Code   section 69 (resisting an executive officer) conviction when a person e-mails a   threatening message with the intent to deter officials from performing their duties   and it may be inferred that he intended that the message would be conveyed to   the intended targets. Appellant was convicted of section 69, with the   conduct in question being the e-mail he sent to the Department of Defense. The   appellate court, observing that appellant had not raised a First Amendment   argument, evaluated the conviction under a substantial evidence test, and found   that it was supported by the evidence. Penal Code section 69 sets forth two ways   the offense can be committed; the first is by threats to prevent an officer from   performing a duty imposed by law, also known as attempting to deter, and the   second is by resisting an officer by force or violence in the performance of his   duty. Here, the case against appellant was based on the first form of violation   of section 69. The evidence demonstrated that appellant intended to deter   officials from patrolling or otherwise performing duties in the preserve by   threatening to "fire on" them if they appeared. Appellant essentially   acknowledged this when he told a sheriff's deputy that the e-mail "worked" by   keeping officers off the preserve. Section 69 does not require that the threat   be transmitted separately or directly to the intended victim or that defendant   have the present ability to carry it out, only that it deterred performance of   a duty. The inference may be drawn that appellant intended that the threatening   message would be conveyed from the Department of Defense to the intended law   enforcement targets.

If you are arrested for allegedly violating California Penal Code section 69, you need an attorney who understands your situation, and the recent caselaw behind it. The Law Office of George Derieg has serious experience litigating Penal Code section 69 cases.

Contact Attorney George Derieg for all your criminal litigation concerns, particularly Cal Penal Code section 69, resisting an executive officer.

George Derieg

510-355-2747

www.eastbayattorney.com

Aider and Abbettor Attempted Murder

Case Name: People v. Favor , CalSup , Case #: S189317

Opinion Date: 7/16/2012  , DAR #: 9698

Case Holding:

Under the natural and probable consequences   doctrine, to be liable for attempted premeditated murder, there is no   requirement that an aider and abettor reasonably foresaw an attempted   premeditated murder as the natural and probable consequence of the target   offense. Appellant was convicted of first degree murder, attempted   murder, and robbery. The prosecutor's theory was that appellant was guilty of   first degree murder under the felony-murder rule; of robbery, as an aider and   abettor; and of attempted murder under the natural and probable consequences   doctrine. Appellant argued that the trial court erred by not instructing the   jury that it had to determine whether a reasonable person in defendant's   position would have known that premeditated attempted murder, not just attempted   murder, was a natural and probable consequence of the robbery. Disapproving People v. Hart (2009) 176 Cal.App.4th 662, and upholding People v.   Cummins (2005) 127 Cal.App.4th 667, the Supreme Court affirmed. Penal Code   section 664, subdivision (a) (attempted murder) does not create a greater degree   of attempted murder, but rather constitutes a penalty provision increasing the   punishment for attempted murder beyond the maximum otherwise prescribed when the   murder attempted was willful, deliberate, and premeditated. People v.   Lee (2003) 31 Cal.4th 613, held that an individual could be convicted of   premeditated attempted murder, as an aider and abettor, even if he did not   personally act with deliberation and premeditation. The law only requires that   the attempted murder has to be committed by one of the perpetrators with the   requisite state of mind. With its opinion in this case, the Court extended the Lee rationale to the natural and probable consequences doctrine. Under   this holding, it is sufficient that attempted murder is a reasonably foreseeable   consequence of the crime aided and abetted, and the attempted murder itself was   committed willfully, deliberately, and with premeditation.

If you are charged with a group of people for a serious crime, it is imperative you hire an attorney with felony litigation experience as soon as possible. Contact the Law Office of George M. Derieg as soon as possible.

www.eastbayattorney.com

510-355-2747

Disputing Restitution

Case Name: People v. Runyan , CalSup , Case #: S187804

Opinion Date: 7/16/2012  , DAR #: 9707

Case   Holding:

Under Penal Code section 1202.4, where the defendant's   victim dies immediately and leaves no survivors to seek restitution on their own   behalf, restitution to the victim's estate is limited to pre-death losses   resulting from the defendant's criminal conduct. Appellant, driving   intoxicated, killed another driver instantly in a freeway collision. The victim   left no surviving family, dependents, or heirs. Appellant was convicted of gross   vehicular manslaughter, sentenced to prison, and ordered to pay restitution to   the decedent's estate for post-death diminution of value of property the   decedent owned in life, funeral and burial expenses, and costs of estate   administration. The restitution award was reversed. Interpreting section 1202.4   and Marsy's Law, the Court found that the estate was not a "direct" victim and,   therefore, was not entitled to restitution for its own expenses incurred as a   result of the victim's death. Although a decedent's personal representative is   authorized to receive, on the decedent's behalf, restitution for economic losses   the decedent personally incurred prior to death as an actual victim of the   defendant's crime, here there were no such losses.

Restitution can be a tricky situation. You have 30 days to contest a restitution amount once you have been properly noticed of the amount. In order to contest restitution, you should hire a lawyer with the appropriate experience in fighting gross amounts of restitution.

Attorney George Derieg
www.eastbayattorney.com
510-355-2747

Illegal Camping no 4th Amendment Violation

Case Name: People v.   Nishi , District: 1 DCA , Division: 1 , Case #: A129724

Opinion Date: 7/13/2012  , DAR #: 9687

Case   Holding:

A warrantless search of a campsite does not violate the   Fourth Amendment when a person is not legitimately on the premises and is aware   that occupying the premises without consent is illegal. In 2010,   appellant sent e-mails to the Department of Defense complaining that Department   of Fish and Game personnel had unlawfully shot protected mountain lions and that   he was armed and would fire on all sheriffs and Fish and Game personnel. The   e-mail was forwarded to local agencies who advised their staff to take   precautions. A deputy sheriff located appellant on a preserve and arrested him.   Appellant's campsite was searched and shotgun shells were located and seized   from a tarp surrounding the tent. The warrantless search did not violate the   Fourth Amendment. Appellant had no reasonable expectation of privacy because he   was not lawfully or legitimately on the premises. Camping on the preserve was   prohibited without a permit and appellant did not have one. Because he   previously had been cited for illegal camping and evicted from other campsites   in the preserve, he was conscious of the illegality. Appellant was not in a   position to legitimately consider the campsite as a place society recognized as   private to him.

It's usually not a good idea to inform police agencies that you are armed and willing to shoot at peace officers. In the event that you do, it is very likely that they will seek you out and arrest you. In the event that you are arrested after boasting to the police about your willingness to shoot them, it's probably a good idea you say nothing incriminating as you are taken into custody. It's also not a good idea to shoot at them as they are approaching you.

Nonetheless, contact the law office of George Derieg if you have been arrested for illegal camping, or cited for it by the Department of Fish and Game.

George Derieg
www.eastbayattorney.com
510-355-2747

Drug Offense Sentencing

Case Name: People v. Beard , District: 3 DCA , Case #: C066320

Opinion Date: 7/13/2012    , DAR #: 9629

Case Holding:

A Health   and Safety Code section 11370.2 enhancement for a prior drug conviction is not   subject to the one-third limit of Penal Code section 1170.1. Appellant   was convicted of several offenses and sentenced to an aggregate term of 22 years   in state prison. The term included a drug offense plus an enhancement pursuant   to Health and Safety Code section 11370.2. The consecutive penalty for the drug   offense was calculated at one-third the middle term pursuant to Penal Code   section 1170.1, subdivision (a), with the drug enhancement imposed to run   full-term consecutive, for an additional three years. Affirmed. Health and   Safety Code section 11370.2 is a status enhancement related to the offender, as   compared to an enhancement related to the manner of the commission of the crime.   The latter falls within the provisions of section 1170.1, subdivision (a), such   that a consecutive sentence will be calculated at one-third. The status   enhancement, on the other hand, does not fall within section 1170.1 and a   consecutive sentence will be full-term.

Felony drug offenses can carry a large amount of prison time. It is in your best interest to hire a lawyer who is experienced with handling all levels of drug offenses. From mere possession to sales cases, you need an attorney who will be able to negotiate the complex system of criminal court, and felony sentencing. If you have been arrested for a misdemeanor or felony drug case in California, oyu need a lawyer who has the experience to zealously defend your rights.

Contact Attorney George Derieg today for a free consult.
www.eastbayattorney.com
510-355-2747

Mental Illness Litigation

Case Name: People v. O.P. , District: 3 DCA , Case #: C066319

Opinion Date: 7/13/2012    , DAR #: 9625

Case Holding:

Due   Process concerns require that Welfare and Institutions Code section 6500 (civil   commitment) be construed to contain a requirement of a finding of current   dangerousness based on evidence beyond the charges filed against a minor and the   minor's incompetence to stand trial by virtue of mental retardation. Appellant, a "mildly retarded" 13-year-old minor was charged with assault with a   deadly weapon. A court found that he was not competent to stand trial. Welfare   and Institutions Code section 6500 provides for involuntary civil commitment for   those who are mentally retarded and dangerous. Following an 11-day jury trial to   determine whether appellant should be civilly committed, the court committed   appellant to a developmental center. At trial, the court had instructed the jury   with a special instruction that essentially informed the jury that it could find   appellant "dangerous" based on the fact that he was deemed incompetent and   charged with a violent felony. Although the appeal was moot as it would be   decided beyond the commitment period, the court exercised its discretion to hear   it because it presented an issue of continuing importance. The appellate court   agreed with appellant's contention that this special instruction resulted in a   denial of due process. To withstand a due process challenge, section 6500 must   be read to contain an implicit requirement of proof of mental retardation and   current dangerousness, and the requisite link between the two. The instruction   here did not contain this essential requirement. [Editor's note: Welfare and   Institutions Code section 6500 was recently amended. The amendments included   substituting "developmental disability" for "mentally retarded."]

If you or a family member have a mental illness and is charged with a crime in California; be it a misdemeanor or a felony, you must hire an attorney with experience in handling these types of cases. Attorney George Derieg has litigated hundreds of criminal cases where the defendant had a known mental illness. It is imperative that you hire a lawyer with experience in these cases, your family member will thank you for it.

George Derieg
Attorney at Law
www.eastbayattorney.com
510-355-2747

Right to Trial Not a Right to Intimidate.

Case Name: People v. Pena , District: 4 DCA , Division: 2 , Case   #: E052558

Opinion Date: 7/13/2012  , DAR #: 9678

Case Holding:

The public and the defendants' Sixth Amendment right to a public trial was not violated when the defendants' family was excluded from the final portion of the trial based on reports from two jurors that the family was following them outside of court. In this trial of gang related charges, two jurors informed the court clerk that they believed defendants' family members were following them and that it made them uncomfortable.  The judge excluded the family members during the last 30 minutes of testimony, closing argument, and jury instruction.  The appellate court found no error.  The United States Supreme Court has made it clear that the right to an open trial may give way to such interests as the defendant's right to a fair trial.  (Waller v. Georgia (1984) 467 U.S. 45.)  Here, the trial court identified three interests that it found that prevailed over the right to an open trial: the right of the defendants to a fair trial; the right of the jurors to feel free of intimidation; and the right of jurors to an undelayed conclusion of their duty as jurors.  The exclusion, coming at the end of the trial, was found to be de minimis and no broader than necessary to protect these three interests.  Considering other alternatives, exclusion was reasonable under the circumstances.

Pursuant to the 6th Amendment to the US Constitution, you have the right to a fair trial. This does not mean that you have the right to have family members follow jurors outside of the court room in an effort to intimidate them. The right to trial is an important right that should be respected. You also will need a lawyer who has jury trial experience. As a former Deputy Public Defender I have handled a vast amount of jury trials ranging from low level misdemeanors to high level felonies. Contact the Law Office of George M. Derieg if you want a lawyer who has the experience you need when faced with dire circumstances.

George Derieg

Attorney at Law

www.eastbayattorney.com

510-355-2747

Parole Hearings

Case Name: In re Tapia , District: 4 DCA , Division: 3 , Case   #: G046142

Opinion Date: 6/25/2012  , DAR #: 9912

Case Holding:

Petitioner's failure to divulge the   identity of his accomplice until the parole hearing was some evidence of parole   unsuitability, so as to justify the Board's decision to deny parole. Appellant was convicted of first degree attempted murder, conspiracy to commit   murder, and kidnapping, and sentenced to 26 years to life in state prison. At   his parole hearing, he divulged the identity of his accomplice for the first   time. The Board found that failing to provide the identity of a violent criminal   for 17 years after the crime occurred constituted an ongoing threat to the   public. Petitioner's writ of habeas corpus was granted by the trial court but   reversed by the appellate court. The Board of Parole Hearings is responsible for   setting a date for the inmate's release after the parole hearing unless it   determines that public safety requires further incarceration. Under current   authority, if "some" evidence considered by the Board justifies its decision,   the decision will be upheld on review. In reviewing a parole-suitability   determination, the essential question is whether the inmate currently poses a   threat to public safety. Here, the court agreed with the Board that petitioner's   failure to identify his accomplice for 17 years might have allowed a dangerous   criminal to remain on the streets and neglected petitioner's societal obligation   to protect the public by reporting criminal activity. As such, this factor is   some evidence of petitioner's unsuitability for parole. There was also some   evidence that appellant downplayed the planning elements of the crime, which   also justified the Board's conclusion that he was unsuitable for parole.

When a person is sentenced to life in prison with possibility of parole, they would do best to hire an attorney to represent them at their parole board hearing. Mr. Derieg has litigated vast amounts of parole hearings, and has had success in doing so. Contact attorney George Derieg to litigate you or your family members parole hearing.

George Derieg
Attorney at Law

www.eastbayattorney.com

510-355-2747

Accomplice Liability Provocation Enhancement

Case Name: People v. Gonzalez , CalSup , Case #: S189856

Opinion Date: 7/5/2012  , DAR #: 9375

Case   Holding:

Where defendant escalated a fight by handing her   accomplice a loaded gun, sufficient evidence supports her conviction for first   degree murder under the provocative act doctrine. When she saw that her   boyfriend was losing a fight with the man they had planned to assault, appellant   handed him a loaded rifle that she brought to the fight. The intended victim   disarmed appellant's boyfriend and shot and killed him. Appellant contended that   her conviction of first degree murder of her boyfriend was not supported by   sufficient evidence. Affirmed. The evidence supported the conclusion that   defendant committed a provocative act that proximately caused the intended   victim to kill appellant's boyfriend. By bringing a loaded gun to the scene and   handing it to her boyfriend, appellant deliberately escalated the level of   violence of the encounter; this went beyond the acts necessary to "beat up" the   victim and was "fraught with grave and inherent danger to human life." Even   though a provocative act may not be dangerous to human life in and of itself, it   nonetheless may be likely to elicit a dangerous response under the circumstances   in which it is committed.

If you, or a loved one has been charged as an accomplice to a crime, you must call an attorney as soon as possible. Accomplice liability is no joke and you could be charged with a very serious crime as in the case above. The Law Office of George Derieg is experienced with accomplice liability litigation. Do not risk being represented by a public defender, you need an attorney that understands this area of law. You need George Derieg as your attorney.

George Derieg

Attorney at Law

www.eastbayattorney.com

510-355-2747

Vandalism Restitution

Case Name: People v. Stanley , CalSup , Case #: S185961

Opinion Date: 7/9/2012  , DAR #: 9450

Case Holding:

When awarding restitution to a vandalism victim, the court has   discretion to award either replacement cost or repair cost. Defendant   vandalized the victim's 1975 pickup truck which had been in excellent condition   when purchased for $950 some 18 months earlier. Defendant pled guilty to felony   vandalism and received a 16-month sentence. He contested the court's award of   $2,812.94 to the victim to repair her vehicle. The Court of Appeal rejected   defendant's argument that victim restitution should be limited to the $950   purchase price of the car. Affirmed. Under Penal Code section 1202.4,   subdivision (f)(3)(A), the trial court may award restitution to the victim for   the replacement cost of property or the actual cost of repair when repair is   possible. The decision whether to order replacement or repair costs is left to   the sound discretion of the court. In this case, awarding the victim the cost of   repair did not result in a "windfall" to the victim as appellant asserted. This   conforms with the spirit of Proposition 8's "Victim's Bill of Rights" as well as   the implementing legislation.

If you have been charged with Vandalism under California Penal Code section 594 et al. you must contact a lawyer as soon as possible. The Law Office of George Derieg has vast amounts of experience in litigating vandalism cases throughout the state of California. Mr. Derieg will not only fight your case up to jury trial, he will also, in the event you are convicted, fight tirelessly to make sure restitution is limited only to what is fair and just.

George Derieg

Attorney at Law

www.eastbayattorney.com

510-355-2747

DUI Restricted License

Case Name: People v. Valverde , District: 4 DCA   , Division: 3 , Case #: G045332

Opinion Date: 7/6/2012    , DAR #: 9417

Case Holding:

Where   defendant suffered one conviction for driving under the influence (DUI) she is   not entitled to issuance of a restricted license under a statute which only   applies to those convicted of DUI on more than one occasion. Defendant   pled guilty to driving under the influence and the DMV suspended her license for   six months, concurrent to a one-year administrative suspension. She then asked   the DMV to issue her a restricted license under Vehicle Code section 13352,   subdivision (a)(3) after she met the requirements listed in the statute. The DMV   denied the request because that subdivision applies to drivers who have suffered   more than one DUI conviction and appellant had only one DUI conviction. The   trial court ordered the DMV to issue the restricted license. Reversed. Based on   its language, section 13352, subdivision (a)(3) does not apply to a person who   has suffered only one conviction for DUI. The legislative history does not   reflect why first offenders are treated differently. The court noted that   another statute, section 13352.4, provides for issuance of a restricted license   for an offender, like appellant, whose license was suspended under section   13352. However, appellant did not seek a restricted license under section   13352.4 and her request to apply that section to her case on appeal was denied   as forfeited.

If you have been convicted of more than one DUI, you have the right to apply for a restricted driver's license. According to the above case, you do not specifically have this right if only convicted of one DUI. I believe there is some wiggle room with the DMV in applying for a restricted license after only one DUI conviction. If you are facing your first DUI, contact the Law Offices of George M. Derieg.

George Derieg

Attorney at law

www.eastbayattorney.com

510-355-2747

Sexually Violent Predator Appellate Dismissal

Case Name: Macy v. Superior Court , District: 6 DCA , Case #: H037138

Opinion Date: 6/15/2012  , DAR   #: 7999

Case Holding:

Automatic dismissal of SVPA   commitment proceedings is not the appropriate remedy when original concurring   evaluations under Welfare and Institutions Code section 6601 were conducted   using an invalid regulation and updated evaluations conducted under section 6603   produced conflicting opinions regarding whether an individual meets the SVP   criteria. Petitioner's original section 6601 concurring evaluations   were conducted using an invalid regulation. Updated evaluations conducted under   section 6603 resulted in conflicting opinions regarding whether the petitioner   met the SVP criteria. Petitioner argued that the trial court was legally   obligated to dismiss his SVPA commitment proceedings under these circumstances.   The Court of Appeal denied petitioner's writ of mandate without prejudice and   refined the remedy created by In re Ronje (2009) 179 Cal.App.4th 509,   to address the situation where evaluations under section 6601 were conducted   under an invalid "underground regulation." When an individual seeks Ronje relief after a probable cause hearing but before trial, the   person must affirmatively show (1) the concurring evaluations under 6601 were   conducted using an invalid assessment protocol and (2) this error or   irregularity "reasonably might have affected the outcome" of the probable cause   hearing. If such a showing is made, the court should allow a reasonable time for   the Department of Mental Health (DMH) to obtain new evaluations using a valid   protocol. If the individual additionally establishes that the use of an invalid   assessment protocol resulted in a material defect in either of the concurring   evaluations that were the basis for filing the commitment petition, new   concurring evaluations must be produced pursuant to section 6601 to cure the   defect. Where refined Ronje relief is ordered and the DMH satisfies the   applicable requirements, the court must hold a new probable cause hearing   pursuant to section 6602. The court must dismiss the commitment petition only if   a rare situation arises where DMH does not meet these requisites. Here,   petitioner did not show that the trial court ordered the new evaluations that   produced several splits in opinion to effectuate a Ronje remedy.   Instead, it appeared that the new conflicting evaluations were generated   pursuant to section 6603, subdivision (c) and such disagreement did not mandate   dismissal.

If you or a loved one has been convicted of a sex offense, you may fall under a designation of being a sexually violent predator. Even though you might finish your prison sentence, you may be still be required to stay in a mental hospital or prison facility for the rest of your life. Contact the Law Office of George Derieg so you are aware of your rights.

George Derieg

Attorney at Law

www.eastbayattorney.com

510-355-2747