Articles in "Criminal Law"

Ventura: Come on Vacation, Leave on Probation

by Matthew Bromund

Principal Attorney
August 12th, 2016

  • It’s not just a joke, it’s a reality for many people who happen to be in public places in Ventura County where our peace officers can take advantage of the very broad authority given to them by our state government to regulate your conduct.  Here are a few examples of criminal misconduct producing years of probation supervision:
  • --Buying a ticket for one movie, deciding it is terrible and taking oneself to a different movie showing at the same time (Petty Theft: 3 years probation)
  • --Having two drinks at an after-work going away party (5:30-6:15 PM), leaving the bar/restaurant at 6:20 feeling completely sober, being pulled over as you leave the parking lot at 6:21 and being examined till 7:00 so that when tested for alcohol impairment revealing .08% BAC (Driving under the Influence: 3 years probation)
  • --While going through the first stages of divorce, having an argument with your husband at high volume, resulting in the police being called, you being arrested (Terrorist Threats: 3 years probation)
  • --Shopping with your toddler, paying for $148 worth of items, discovering as you unloaded the car that a $2 candy item was ‘added’ to your cart by said toddler, taking the item back in to return it and being detained, searched and arrested (Petty Theft: 3 years probation)
  • Graduating high school and deciding to do a ‘senior prank’ of putting super glue into the locks of several classrooms along with several of your classmates (Felony Destruction of Property, Conspiracy: 5 years probation)

While some of you may think that all of these convictions are perfectly fair, others of you will read those facts and see yourself in the scenarios.  That’s something to keep in mind in the arena of criminal law:  we have now made so many things illegal that most of us have been a criminal at some point in our lives (regardless of whether or not we have been charged for our misconduct). 

The greater challenge is that each one of these people now labor under terms of probation that often include consenting to be searched by any peace officer at any time, with or without suspicion, restriction on travel and employment, and regular reporting to a probation officer, potentially causing difficulty retaining employment.  As an added bonus, all this supervision costs several thousand dollars a year, an additional cost for misconduct that can deny you the ability to make rent, buy groceries, or care for your children. 

Fortunately, you do have rights to assert that can protect you against these consequences, IF you have an advocate who knows how to assert them. 

Most people charged with their first criminal offense make three huge mistakes that end up costing them their reputation, their hard-earned money, and in some cases, their families and their freedom: 

  1. They assume that if they tell the truth, they will be treated more leniently.
  2. They go into court assuming that a lawyer won’t make a difference in the outcome, the situation ‘is what it is.’
  3. They believe that a Defendant is presumed innocent unless evidence beyond a reasonable doubt of some significant crime exists.  In reality, you are treated as guilty from beginning to end and only an advocate focused on proving you innocent will find the law and facts needed to make clear that you are not a criminal. 

 

Almost always, silence is golden and declining to answer questions put to you by the police works in your favor.  Most people are convicted of crimes as a result of their own statements, and the twisting of words that some peace officers employ to make the innocent seem guilty.  Remember, once you are under suspicion, every police officer, judge, and most jurors will assume your statements are lies, intended to deceive honest folk.  Don’t give the system your words, keep silent and insist that the state prove their case. Additionally, the criminal law is not some divine engine of truth; it is a system designed by people to obtain submission and compliance from society’s members.  In many cases, the principal goal is to obtain revenue for the state, not to obtain the truth.  If you doubt this, consider the fact that our DUI laws ask each person to be an amateur chemist, assuming that you can tell whether or not your blood will be at .08% BAC or greater 40 minutes after you are stopped by a police officer.  I promise you, you do not, and can not, know, nor would a professional forensic chemist be able to accurately tell you, in advance.  Additionally, the vast majority of people aren’t actually impaired until their BAC is .10% or higher, but the .08% BAC limit was found to produce a significantly higher number of arrests since most folks won’t feel any intoxication at that level and would evaluate themselves as being safe to drive.

 

 

If you, or someone you love, is charged with a crime, give them a gift that can change their lives for the better:  an introduction to the Bromund Law Group.  Our attorneys are skilled, experienced, and dedicated.  We offer free consultations in English and Spanish and have the knowledge and connections to help make one of the worst days of someone’s life into the chance to vindicate their faith in American justice.  805.650.1100

 

Not All War Wounds are Visible

by Matthew Bromund

Principal Attorney
July 30th, 2014

honoring our fallen warriors

“War is Hell”– General William Tecumseh Sherman

Hell sometimes doesn’t end when the war does.  We have had two centuries of honoring our fallen warriors, those indispensable few who gave all so that this nation, this experiment in liberty, would not end.  We keep cemeteries and holidays and give posthumous medals to recognize their courage and sacrifice.  Their widows and orphans become special to our society and we look out for them (not enough) so that they need not endure deprivation in addition to the grief of loss.  But what about the wounded warriors, the ones who come home but leave something important behind?

Purple Heart on American FlagIf their wounds are visible, they can receive physical therapy, prosthetics, surgeries and, most importantly, accommodation by a society that can see their injuries.  Their lot is not good and their suffering is certainly real but we can all understand what has to be done for them to make their way in the world.  By and large, we do our best to help them along.

For the warrior whose wounds are not visible, however, things are more grim.  The stress and trauma of war (combat, death of friends, loss of innocence and shattered wordviews) linger for many veterans for the rest of their lives.  Those injuries can become wounds far deeper than any visible wound and can impair one’s ability to function in our society.  After all, no one accommodates your combat-caused paranoia because no one can see that you are feeling paranoid.  Even worse, most of our society doesn’t even stop to consider that the mental wounds of war persist and impact EVERY part of someone’s ability to interact with society.  Instead, we just expect that a returning veteran can integrate smoothly back into normal life.

In the field of criminal defense, we know, all too well, that this is not the case.  Many veterans struggle with severe persistent mental illness after returning home from serving their country.  Post-Traumatic Stress Disorder is the most recent high-profile illness, resulting in disorientation, difficulty controlling violent impulses, paranoia and occasionally hallucinations but it is by no means the only illness.  Schizophrenia is another common war wound that causes a person’s entire world view to shift radically, rendering their ability to address everyday life extremely limited.

At the Bromund Law Group, we work very hard to see that these veterans are given the same consideration we would give a veteran with a visible wound.  We believe that mental illness is no different than physical illness in the extent to which it is blameworthy to be ill.  We don’t blame the person with the flu for being unable to work or the blind person for being unable to see and we shouldn’t blame the schizophrenic for being unable to handle our rule-intensive compliance-driven society.  Fortunately, California law agrees.  Through the provisions of Penal Code Section 1170.9, a criminal court is obliged to consider treatment rather than incarceration for veterans whose wounds are mental.  This is a powerful tool for the skilled advocate to shape a resolution that is more just and rehabilitative.

We cannot guarantee that we will be able to avoid jail time for all charged and guilty defendants.  We can, however, report that recently we were able to navigate a case through to resolution that will keep a severely mentally ill combat veteran from the Vietnam war from being further harmed by a sixty-day stay in the county jail.  His schizophrenia rendered him too ill to benefit from the mental health court and too difficult to accept confinement safely.  For the 18 months we worked on his case it appeared as if all the options were bad:  he was guilty, there was more than enough evidence to convict him, he was in extremely poor health and his mental illness caused him to react violently whenever anyone tried to confine him.  Fortunately, we persisted on his behalf and eventually won recognition that the principal embodied in section 1170.9 (treatment for the mentally ill veteran is appropriate instead of confinement) could be vindicated here through an out-patient process by staying his jail time while he was successfully participating in treatment.  In this task, we were gratified to see the District Attorney’s Office of Ventura County recognize that doing justice requires using judgment and discretion to see that maximum punishment is not always what is best for society.

Now, thanks to this hard work, one of our wounded warriors is able to continue the long hard struggle to leave the hell of war behind and return to the bright light of freedom.  His sacrifice allows us to enjoy our freedom; our advocacy allows him to attempt to enjoy his.

serving those who servedIf you or someone you love needs help in seeking a just resolution to charges against a veteran, please do not hesitate to contact the Bromund Law Group.  I am an honorably discharged naval officer with a long family tradition of military service; I care deeply about the welfare of those who defend our freedom every day and in every age.  We never charge for a consultation and we are honored by your trust and confidence in our advocacy.

As always, this blog does not constitute advice for your case or any other specific case.  It is merely provided to offer opinions and insights about ongoing legal issues.  If you require specific advice, please call our office today at 805.650.1100.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

Nelson Mandela 1918-2013

by Adriana

December 17th, 2013

Nelson Mandela, the revered statesman who emerged from prison after 27 years to lead South Africa out of decades of apartheid, died December 5, 2013. “He no longer belongs to us; he belongs to the ages,” President Barack Obama stated in remarks at the White House. “We will not likely see the likes of Nelson Mandela ever again,” the president said. “So it falls to us, as best we can, to carry forward the example that he set.”

 

Mandela was the first black President to hold office in South Africa. While in office he dedicated his presidency to dismantling apartheid through tackling poverty and racial inequality. Prior to his presidency, Mandela was an advocate against the apartheid throughout his life. On August 5, 1962 he was jailed and subsequently convicted of sabotage, inciting worker’s strikes, and leaving the country without permission. He used his trial to highlight the racism in South Africa. At the trial, instead of testifying, he opted to give a speech:

 

“I have fought against white domination, and I have fought against black domination,” he said. “I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal, which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

 

He was found guilty and sentenced to life imprisonment, despite pleas for clemency by the United Nations and World Peace Council. He spent the next twenty-seven years of his life in prison.

In 1990, Mandela was released from prison and in 1994 was elected President. Despite chronic political violence in the years preceding the vote that put him in office in 1994, South Africa avoided a full-fledged civil war in its transition from apartheid to multiparty democracy. The peace was due in large part to the leadership and vision of Mandela and Frederik Willem de Klerk. Although his presidency only last for one term, he dedicated the rest of his life promoting democracy and peace.

 

Sandra Holzner, Esq.

Associate Attorney Bromund Law Group

Nelson-Mandela’s-Top-Five-Contributions-to-Humanity (1)

Improving a Case Even If You Are Guilty

by Matthew Bromund

Principal Attorney
November 15th, 2013

Guilty ExpressionIf you are ACTUALLY guilty of the crime charged, what can a private defense attorney do for you?  A lot more than you likely think.  After practicing law for more than a decade, I have come to realize something critical about the law as expressed in our court system:  It isn’t a system built around the quest for truth, it is a system built around the assignment of blame.

The quest for truth is part of the mythology of the law, the belief-system that is supported with phrases of terrific ‘truthiness’ like ‘presumed innocent’ and ‘proof beyond a reasonable doubt’ and ‘the truth, the whole truth, and nothing but the truth, so help you God.’  Prosecutors are schooled in these myths and they are enshrined in documents like the National District Attorney Association’s ‘National Prosecution Standards’.  In law school it is treated as an article of faith that justice will result from the sincere invocation of these myths and beliefs.  Reality is far different.  In the real world of charges and cases, obtaining justice requires that a story be crafted and presented that recognizes that the myths of our legal system don’t simply become realized through the invocation of the words.  Instead, the bald facts of a case need to be squared with the motivations that caused those facts to occur.  The consequences of those facts need to be carefully considered by the Defense because, as countless cases have shown me, the Prosecution does not consider all the consequences that flow from their charges.

A quick example:  a woman flees Afghanistan’s gruesome Taliban regime in 2000, before 9/11 and the American political recognition of the horrible situation in that nation.  When she arrives in the USA, she doesn’t qualify for asylum but is convinced she would be killed if she returned.  As a result, she breaks the law to save her life and becomes an undocumented worker in this country.  After 9/11, the political winds change and she is given legal status in the United States.  The facts of her case are unchanged but their meaning is recast in light of our nation’s new orientation against the Taliban.  Her life is still hard and her legal status merely allows her to strive with other legal workers to make ends meet.  The recession of 2008 begins (and hasn’t ended, as far as I can tell from the lives of working people) and her living situation becomes absolutely desperate.  In a scene that could have been cut from Les Miserables, she resorts to stealing food from a store to feed her infirm parents, intending fully to pay for the food in two days when she is paid for her part-time minimum wage job.  She couldn’t receive food stamps as a result of her immigration situation and she had no savings or other resources to rely upon here in the United States.  She is caught, arrested and admits her wrongdoing immediately.

The District Attorney charges her with petty theft, a minor crime that would have no major impact on the life of a citizen aside from paying fines, fees, and needing to comply with the supervision of a probation officer for some span of years.  But she is not a citizen.  She is an immigrant and immigrants are subject to a special set of rules, rules whose violation can result in the immigrant being removed forcibly from the United States, returned to their country of origin, and incarcerated while the immigration court decides if removal is warranted.  In her case, such incarceration would result in the absolute destruction of her parent’s lives since she is the sole provider for them here in the United States.

But the District Attorney isn’t concerned with the ‘collateral consequences’ of a conviction for petty theft.  The criminal justice system considers immigration consequences to be outside their purview and not their concern.  Judges also feel powerless to act since their ability to enter orders providing guidance to the immigration court was specifically taken away by Congress in an earlier age of draconian ‘reform’ of the immigration law.  The Supreme Court of the USA recently attacked this view but no Judge in Ventura County has yet vacated a conviction in recognition of the Supreme Court’s directive.  We have asked, several times, to no avail.

What then is to be done?

With a skilled defense attorney, the situation can be shaped BEFORE the conviction is entered.  By focusing on the intent and ability to repay for the theft, we can arrange a civil compromise, a reduced charge that will not result in removability, and potentially show at jury trial that the facts don’t support a conviction of petty theft.  These outcomes are not guaranteed, in fact, they are often very difficult to obtain.   Our society has the general beliefs that those charged with crimes are guilty, deserve to be punished, and that punishments are too lax to be effective at deterring criminal behavior.  Overcoming those beliefs for individual clients requires the skilled attention of a defense attorney to insure that the whole person is considered by the court.  Only then can justice actually be obtained through our legal system.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

The ‘Harvey Waiver’ or ‘How You Can Be Responsible for Paying Restitution for Charges You WEREN’T Convicted Of”

by Matthew Bromund

Principal Attorney
October 15th, 2013

Sometimes clients of mine will be charged with several crimes, all in one complaint.  At the BLG, we always start from the presumption of innocence and spend our first phase of casework developing the reasonable doubt necessary to secure either a dismissal of the charges or an acquittal (Not Guilty verdict) at trial.  We never deviate from that posture, even in the face of serious charges or an offense that some may believe represents an indefensible offense (DUI, Red Light Camera Violation, even Parking citations have all been successfully defended by our firm).   Sometimes, however,  the evidence is compelling, and an effective defense doesn’t appear available on either legal or factual grounds.  In those circumstances, it is necessary to work on a guilty plea resolution.

Innocent_Guilty

When the complaint includes multiple offenses, the resolution often lies in having the client plead guilty to just one charge but entering a ‘Harvey Waiver’ to address the other charges.  A Harvey Waiver allows that restitution may be imposed on dismissed counts if the plea is freely made, the court approves all conditions, and the offender files a Harvey Waiver. (People v. Beck (1993) 17 Cal.App.4th 209, 215. See also, Penal Code section 1192.3.) Under a Harvey Waiver, the offender is required to pay restitution on all counts connected with the plea. Restitution orders are to be imposed based on the victim’s losses and benefits paid by the Victim Compensation Program.  You can read about their views on that process here.

Oftentimes, entering a Harvey Waiver can create the ability for us to fashion a guilty plea that preserves important post-conviction opportunities by satisfying the District Attorney that the victims of all the alleged crimes will be compensated while allowing our client to only accept one conviction on their record.  For example, for a non-citizen charged with a crime, a Harvey Waiver resolution can preserve admissibility under the immigration laws of the United States or keep a client from becoming deportable.  Additionally, being convicted of only one crime can sometimes keep a client eligible for probation, which will make expungement and other rehabilitive relief feasible down the road.

In all cases, taking the case from charge to full completion requires a legal mind that is both perceptive and wise since the first option may not always be the best option.  After all, the best batters don’t always swing at the first pitch!

This blog discusses matters of general legal knowledge and is not intended to in any way advise any person as to their specific legal situation.  If you, or anyone you know, is facing a legal case requiring consideration of these issues you should additionally consult a qualified professional, licensed in your jursidiction, to advise you properly.  In no way does reading this blog constitute the formation of an attorney-client relationship between yourself and the BLG.  Please feel free to contact the BLG if you have questions about this blog or any other legal issues in California.