Atty. Carina Castaneda

LAW AND ORDER: THE LEGAL SYSTEM

VICTIM OF A CRIME

I just dealt with a case dealing with the victim of a very serious crime (attempted murder). The initial bail in this amount was $100,000 but after discussing the case with the victim and his wife, this amount was too low. I immediately worked with the victim and his wife to contact the District Attorney and the law enforcement agencies to insure that the appropriate charge (initially assault with a firearm to be revised to attempted murder/murder), increase bail from 100k to 2million dollars and to get a criminal restraining order for both husband and wife. After advising them to gather additional evidence and provide to the police agency, a search warrant was executed. This was all done in 2 days since the defendant was going to be arraigned in “48” hours since he was in custody.
Victims in criminal cases are witnesses –they are not a party to a criminal case. Consequently, many victims are not aware that they should actively “participate” in their case. I had another victim to a rape case who called me after the criminal case was “dismissed.” She wanted me to help her get a restraining order in civil court since when the criminal case was dismissed, no criminal protective order was issued. To say, she was confused as to why her case was dismissed is “putting it mildly.” But it was too late for me to help her in the criminal process when the prosecuting agency has already decided it would not file the case.


The point is hiring a criminal attorney to assist victims in “dealing” with the criminal court system is essential. It is not only critical but as a victim of a crime, in California and many other states, it is your constitutional right. California Constitution article I, Section 28, section (b) has significantly expanded the rights of the victim. This is commonly referred to as “Marsy’s law.”
Victims of a crime, as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors, and law enforcement had no legal obligation to keep families of

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The domestic violence allegations surrounding Johnny Depp and its impact, if any on the divorce proceedings.

We all have read and seen pictures of what appears to be injuries to Johnny Depp’s spouse, Amber Heard. A petition for dissolution has been filed by Ms. Heard to terminate her marriage to Mr. Depp and appears to be requesting also financial issues, including but not limited to, spousal support and asset division. She also filed a request for a restraining order based on her alleged fear and prior physical and mental violence caused by Mr. Depp.

Although many attorneys use the “guideline” dissomaster computer program to calculate temporary spousal support, the dissomaster computation is merely a starting point. The court is required by law to consider all factors set forth in California Family Code (FC) 4320.

FC 4320(i) states in full that “documented evident of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party, and consideration of any history of violence against the supporting party by the supported party.”

FC 4320(m) states in full that “the criminal conviction of an abusive spouse and the elimination of the award in accordance with FC section 4325.”

FC 4320(n): states in full that the court can consider, “any other factors the court determines are just and equitable.”

There is no open and current criminal case against Mr. Depp. But as we see in the tabloids and media outlets, Ms. Heard’s attorney or representatives are “putting” out there photos of her bruises, broken glasses at the scene, etc. and the Los Angeles City and County prosecutors may take a second or even a first “look” into this case. Note, however, that even though Ms. Heard did call the police at one of the incidents, the police indicated there was “no crime” and never pursued any domestic violence arrest of Mr. Depp.

Why are these allegations of domestic violence—both physical and emotional acts surfacing? As already stated above, the court is required to review all filed or non-filed acts of domestic violence, including emotional impact on the supported spouse.
She was granted a temporary restraining order and a permanent order hearing should have been scheduled. It is at this time that the court will decide whether a restraining order, usually lasting 3 years will be instituted.

Disproving domestic violence is not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case is beyond a reasonable doubt.
The orders are the same in both the family and criminal courts. The terms of staying away from the

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D.U.I. AND SOBRIETY CHECKPOINTS

With Memorial Day and the summer season coming soon, many should be aware of DUI checkpoints. Generally, probable cause to stop and question the driver-—observing a traffic violation, defect in the vehicle or driving pattern that indicates the driver may be under the influence of alcohol, narcotics or both. However DUI sobriety checkpoints is an exception to this rule and courts have upheld the power of the police to conduct systematic traffic stops.
To pass constitutional muster under both federal and state laws specific guidelines are outlined in cases such as Ingersoll v. Palmer in California. If the police do not follow the protocol described such as in Ingersoll, the checkpoint is not lawful, and any evidence gathered during arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The California Supreme Court identified eight factors that minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
(1) Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.

(2) Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
(3) Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
(4) Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
(5) Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
(6) Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
(7) Length and Nature of Detention: Only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
(8) Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a

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