Articles tagged "Matt Bromund"

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

 

Only Half of Marriages End In Death, What’s Your Plan If Yours Isn’t One of Them?

by Matthew Bromund

Principal Attorney
July 29th, 2014

Only Half of Marriages End In Death51% of all marriages end in the death of one or both spouses.  The remaining 49% end in divorce.  Married couples buy life insurance, draft wills and engage in estate planning to help prepare each other for the 51% likelihood that death will end their marriage.  No one thinks this is ‘unromantic’ or ‘pessimistic’.  Instead, people see it as an important part of being prudent and caring for each other.

What then makes preparing for the other possibility, divorce, so wrong?

In my opinion, preparing for the other possible outcome is rejected irrationally by most couples based upon the social expectation of a traditional Christian marriage.  I do not contend that this is based upon most couples actually being traditionally Christian in their religious views (we live in a VERY diverse society) nor do I contend that most couples actually intend to engage in what is now called a ‘covenant marriage‘; rather I believe our attitudes about marriage are so shaped by movies, magazines and hyper-romanticization that we don’t truly focus on the realities of our relationships until long after the wedding vows are made.

This tends to make marriages more difficult and divorces more expensive.  A pre-nuptial agreement can help make a marriage easier to manage and less painful to end.

First, how can it make a marriage easier to manage?  Understand that in California, all you are obligating yourself to when you marry someone is to give them mutual respect, fidelity and support.   Actual marriage tends to revolve around agreements on work, residence, sex, children, lifestyle and values.  California’s law has moved from offering a one-size-fits-all set of obligations based on strict Christian religious obligations to a one-size-fits-all set of amorphous and unenforceable obligations.  The practice of ‘mutual respect, fidelity and support’ has no touchstones of performance, no specific proof of acceptability and is absolutely unenforceable.  That’s ok, since ending the marriage merely requires the expression of another amorphous idea, ‘irreconcilable differences’.  These two sets of legal nonsense boil down to one reality:  marriage is the state of consenting to be identified as married and that state ends when either party no longer wishes to so consent.

Most likely, no couple ever existing has had that as the only obligation intended when they marry.  Instead, most every couple has a long list of obligations they intend to see performed through the marriage.  The most common of those relate to working, child-rearing, communication, and resource-pooling.  Oftentimes couples share a set of values and religious practices and they would like to see those values and practices reflected in their marriage.  California law takes no part in making those a part of your marriage.  Through a prenuptial agreement though, you can make it a part of your marriage.

(Sidenote:  I am not contending that California will ENFORCE those agreements or penalize a spouse who doesn’t perform.  It won’t.  Instead, I am contending that if you discuss it with your spouse before you marry, write it down and promise each other that you will live according to those commitments, your odds of having those commitments honored during your marriage improve substantially.) 

California Law permits a prenuptial agreement to cover the following topics:

CA FAM Code Sec. 1612.  (a) Parties to a premarital agreement may contract with respect to all of the following:

  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
  5. The ownership rights in and disposition of the death benefit from a life insurance policy.
  6. The choice of law governing the construction of the agreement.
  7. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

You will notice that the only topic invoked by divorce is the ‘disposition of property upon marital dissolution’.  Otherwise, the provisions of a prenuptial agreement are focused on providing a couple a framework for their marriage DURING the marriage.

Besides providing yourself a clearer understanding with your spouse on what your marriage means, why would you want to do a prenuptial agreement?  Quite simply, because it will work to inhibit the growth of irreconcilable differences.  After fifty years of ‘no fault’ divorce, the facts are clear about what causes divorce today.

Top Two Causes of Divorce in the First Five Years of Marriage: 

1. Lack of Understanding at the Outset about Expectations and Resources.

2. Disagreement over Finances or Stress Due to Financial Misunderstanding.

 

 Doing a prenuptial agreement eliminates the #1 cause of divorce in the first five years of marriage by  insuring the couple has a shared understanding of what their marriage will be about.  It also acts as a pretty good cure for the #2 cause since the couple will discuss, in detail, their finances and financial values in preparing a prenuptial agreement.  In my fifteen years of doing divorce work, I have seen these two causes provide the overwhelming majority of reasons for divorce in the first five years of marriage.  (Not adultery, domestic violence or addiction; those three cause substantial marital stress but tend not to result in a dissolution, at least not initially.)  For marriages that end after the first five years, we realize the more commonly understood benefit of a prenuptial agreement:  reduced legal costs and conflict.

When you have a dissolution proceeding, California WILL act to see the terms of a prenuptial agreement enforced if the agreement is fundamentally fair and provides guidance as to how the parties wanted to have their marital estate divided when they married.  This is the conventional wisdom on prenuptial agreements and it is pretty accurate.  Most of the cases I have seen involving a dissolution with a prenuptial agreement cost 80% less than an equivalent dissolution and are resolved within the mandatory six-month pendency period 98% of the time (versus about 65% of the time in non-pre-nuptial agreement dissolutions of marriages lasting more than five years).

Finally, I want to offer some guidance as to how to make a prenuptial agreement work for you in your marriage and, if you are one of the unlucky 49% whose marriage doesn’t end in death, after.

The Big Three For a Prenuptial Agreement that Works:

  1. Fundamental Fairness—No unconscionable terms, at least a seven day waiting period between the date the agreement was offered and the date it was signed, full disclosure of all the terms and their impact and the opportunity to have independent counsel for each party.
  2. Complete Identification of What Is and Is Not Separate Property both Now and Later.
  3. Limit, don’t eliminate, the obligation to pay spousal support; the California courts look much more favorably on limitations rather than waivers.

 

Let the Prenuptial Agreement show that you agree what is fair while you both love each other and see this process as a way of taking care of each other. The Bromund Law Group is happy to offer free prenuptial consultations and will prepare a prenuptial agreement for a flat fee of $250. 

As always, this blog post does not constitute specific legal advice for any case and it does not form an attorney-client relationship between the Bromund Law Group, its attorneys or associates, and any person.  Please contact us at 805.650.1100 for your free consultation (in either English or Spanish) and we will see if we can help you.  We are always happy to receive your referrals or comments.

In California, You Now Have a Spouse, Not a Husband or a Wife

by Matthew Bromund

Principal Attorney
July 26th, 2014

Marriage Equality

After years of litigation and voting, California’s three branches of government have united to rule that the California Constitution is wrong.  By signing SB 1306, Governor Jerry Brown ratified the actions of the State Assembly to enact the ruling of the California Supreme Court:  Marriage is now between two single people who consent to be married.  The Family Code will no longer reference “husbands” and “wives” but rather spouses.

This is a historic step that opens the door for couples of every sexual combination to be legally married.  Since the US Supreme Court’s ruling in June 2013 declaring that the trial verdict against the constitutional amendment stating that marriage was between one woman and one man could not remain a part of California’s constitution would stand, California has effectively been a state permitting same-sex marriage.  Today, however, the California Family Code formally recognizes that fact.  In bringing into alignment all three branches of government, this new law makes clear that two people can marry regardless of their sex.

It will be interesting to see if the availability of same-sex marriage produces a decline in civil unions (the mechanism created to permit same-sex couples the same benefits as a marriage without using the title ‘marriage’).  It will also be interesting to see if the predictions of Proposition 8′s supporters comes true and other groups, currently denied the state of marriage, petition to have their relationships recognized as marriages as well.

For now, it is a remarkable moment in history, when the Christian conception of marriage (one man/one woman/for life) is formally and finally divorced from the law in California.  I predict religious organizations of all types to now promote their definition of marriage as being one binding on the faithful while the law continues to move towards a more pragmatic recognition of family, however constituted, as being valid so long as it is based upon the consent of the adults involved.  In that way, I suspect the First Amendment’s guarantee of the free exercise of religion for all citizens to be more forcefully asserted by those whose own marriage traditions have long been treated as illegitimate in a Christian-dominated legislative arena.

As family law attorneys, what does this mean?

First and foremost, it means advising clients to do ever more work to insure that their expectations in a marriage are reflected in a prenuptial agreement.  Since California’s Family Code now has only three obligations provided for, by law, in the marriage:  mutual respect, fidelity and support (CA FAM Code Sec. 720) and a marriage can be dissolved on the basis of irreconcilable differences, a couple desiring any other vows or requirements should do so in a prenuptial agreement.  Many spiritual practices and religions have additional obligations, obligations that can only be legally enforced if the parties participate in a prenuptial agreement.

Second, it means that conventional dissolutions will soon be occurring for same sex couples.  In the past, these relationships have been spared the usual process of dissolution with all its standardized forms and formal processes, because the civil union body of law was not as cumbersome as the dissolution body of law.  I personally hope that more couples plan ahead and are prepared for the possibility of a dissolution when they first contract a marriage but that hope remains as intense for same sex couples as it is for opposite sex couples.

Third and finally, it means that we can all celebrate the resolution of a long-standing dispute in our society.  While the courts have been given the power, through practice, of telling us what our laws are and should be, there is something important for our democratic republic in seeing that the law is generated by our legislatures and enacted by the consent of our executives.  As long as the elected branches of government are not engaged in the process of drafting the laws and leaving it only to the courts to address, we lose an important part of our sovereignty.  Whether a specific citizen of California hails or hates this new provision of law, we can all now say that this IS the law, enacted by our government.

As always, if you or someone you love has need of assistance and guidance in family law matters in California, the Bromund Law Group is here to help.  We offer no cost consultations and provide comprehensive family law services in English and Spanish.  This blog is not intended to provide specific guidance in your case and is rather offered for general educational purposes.  Please do not rely on this blog for your case nor should you consider this entry to constitute the formation of an attorney-client relationship with the Bromund Law Group.  If you have questions, please call us at 805.650.1100. 

Juvenile Dependency Cases in Ventura County CAN Be Won!

by Matthew Bromund

Principal Attorney
May 30th, 2014

social worker“Open Up!  We are here from Child Protective Services and we need to speak with you.”

With that, the curtain rises on what is, for almost all families, a nightmare.  Beginning with that phrase, a parent has to defend their ability to be in their child’s life from a system that is geared to assume the worst.  As a society, we have adopted laws to protect children from abuse, to deliver them from evil inflicted upon them in their own homes and to reassure ourselves that we do not turn a blind eye to the neglect of young people’s welfare.  We have also empowered a system that, all too often, tears families apart and places vulnerable children into even greater danger.  How do we balance these risks?  In theory, we balance these in the juvenile dependency court.

Ideally, the system we create would be attentive to the specifics of each family’s reality and culture.  Ideally, the social workers vested with this power would have enough time and resources to see the truth and enough wisdom to use their power carefully.  Ideally, foster families would all be carefully screened for mental health and empathy in addition to having the resources and stability necessary to take in abused and neglected children.  But ours is not an ideal world.  We substitute ‘one-size-fits-all’ for a customized, individualized approach.  We overload caseworkers who, all too often, give in to bitterness and prejudice and take their authority to act as a license to decide who is ‘good enough’ to parent children.  We create such an overwhelming need for foster families that willingness overtakes qualification and sometimes children are delivered into far more dangerous situations than the ones they had at home.  At no point, do these failures of the system invalidate the good efforts and noble intentions of most of the people involved in the work of rescuing and protecting children.  The overwhelming majority of social workers and foster parents do what they do out of sincere love and care for young people.  There are dedicated volunteers to defend the rights of children to be free from abuse, and they do great work.  But the risks are real and the casualties of our system are substantial.

To try and limit those casualties, attorney as the Bromund Law Group take on the case of PARENTS in juvenile dependency proceedings.  Parents are the neglected parties in the juvenile dependency process, often going through the case alone or with very limited appointed legal assistance.  Cases always begin with allegations against one or both parents and it is their perspective that is most often dismissed or discounted.  Allegations aren’t the same as facts and more than a few times we have found that an allegation deemed credible by a social worker evaporated in the light of examination when we insisted upon facts being produced.  Even more importantly, when a family hits a difficult patch (job loss, divorce, chemical dependency), we work constructively with our clients to see that they obtain the support and guidance they need to become the parents their children deserve.  It is not easy work.  There are no guarantees.  But sometimes, with a client who knows how important it is to be there for their children, we prevail.

haiti-rfl-interview-4Just today, I saw a woman reunited with her child after a year of work in the juvenile dependency process.  When we started, her case seemed hopeless.  Her child’s father had a chemical dependency and had degenerated into being an absolute menace to her and her son.  The social worker was convinced that my client’s personal attachment to her son’s father would result in the child being subjected to real risk of abuse.  My client’s limited facility with English and non-existent network of family support meant that she was overwhelmed by the process she faced, alone.  We stepped in to defend her and her son’s right to be returned to his family.  Month after month we built a network of resources around her.  Month after month she met with the social worker, took on extra work to afford a safe place to stay, fought every day to put her son’s welfare first and demonstrate the kind of love only a parent can have for a child.  Today, because of her hard work and our clear understanding of what was really important in the case, her son comes home.  Never again will this family have to go into the dependency court and face the fear of being permanently divided from each other.

If you know someone who needs the kind of patient steady counsel and determined advocacy we provided here, please feel free to have them give us a call.  We cannot guarantee results but we can promise you we will use our best judgment and advocacy to make your family whole.  Juvenile dependency work is about the most terrifying thing any family can face; don’t face it alone.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

What if something that WAS illegal becomes legal after you were convicted?

by Lisa

March 28th, 2014

If the crime was Marijuana Possession and it happened in the state of Colorado, you might be able to get that mark removed from your record.

The Colorado Appeals Court has ruled that if you were convicted of a marijuana possession crime, which would not be considered under the legal possession amount, you may ask that it be thrown out.

Because there has been a “significant change in the law”, a defendant could be eligible for post-conviction relief!

Click HERE for article.

ARMCHAIR ATHLETES – Video Gamers can now get P1A Visas as Professional Athletes

by Adriana

March 14th, 2014


pro-gamers

ARMCHAIR ATHLETES – Video Gamers can now get P1A Visas as Professional Athletes

 

So you say that video gamers aren’t athletes? The United States Citizenship and Immigration Service would disagree with you, as would a rapidly growing fan base and increasingly well compensated joystick jockeys.

 

2013 saw a handful of P1A Visas approved for gamers, and you can bet that their numbers will be increasing. P1A Visas are non-immigrant visas which are issued for up to 5 years which allow professional athletes to live, train, and work in the United States. Until now, these visas were exclusively used for traditional athletes like baseball and basketball players. But changes in technology and culture, coupled with creative lawyering, have extended the playing field to the virtual world.

 

Take, for example, the story of South Korean gamer Kim Dong Hwan, who is a professional gamer in the world of StarCraft 2, according to a recent article on the Huffington Post. (Read the entire article here http://www.huffingtonpost.com/2013/12/16/korean-gamer-visa-starcraft-2_n_4453742.html) This young man has earned almost $100,000 in the last three years competing in this game, and is ranked #63 in the world. The World Championship Series for StarCraft tournament last year paid out 1.6 million to the champion.

 

Gaming is a booming industry. League of Legends, created by a Santa Monica company called Riot, is one such success story. It has been estimated by industry analysts that more than 32 million people worldwide play the game, with half that number coming for the US. Tournaments have filled venues as large as Staples Center in Los Angeles, where approximately 22,000 spectators came to watch the latest StarCraft championship.

 

This is an exciting new area for immigration law, and the demands for the P1A visa are quite high. Successful applicants need to demonstrate international recognition of their achievements in the field (individually or as a team), must be sponsored by a US employer (most likely a team of gamers), with a few other requirements. Spouses and children can accompany the successful applicant with P-4 visas as well. As with any Immigrant or Non-Immigrant Visas, it is always advisable to speak with an experienced immigration attorney before applying. For more information on P1A Visas, you can visit the USCIS website http://www.uscis.gov/working-united-states/temporary-workers/p-1a-internationally-recognized-athlete.

Emotion in California Divorces

by Matthew Bromund

Principal Attorney
February 28th, 2014

divorce helper upset coupleOne of the great challenges in guiding clients through divorce is the issue of emotional conflict.  The law is great at handling the logical issues involved in resolving disputes; we have spent hundreds of years codifying and regularizing the process and paperwork of making apparent what needs to be addressed.  Unfortunately, marriage is an intimate relationship and the issues involved in resolving a dispute in a marriage are rarely logical.  Instead, those issues are almost always emotional and the law is horrible at handling emotional issues.  In fact, the law makes no allowance at all for the emotional side of a divorce, which is unfortunate since often the logical issues in a divorce can be resolved by applying two very simple rules, that no one needs a lawyer to identify (the link is to the California court’s guidance on this):

1) Take what you have, owe, and have earned a right to own and divide it in half; each of you keeps one of those two shares. 

2) Arrange your children’s lives in their best interests. 

The emotional issues in a divorce are not addressed at all by these hundreds of years of refinement, contemplation and legal evolution. In fact, our forebears had a legal system much more attuned to the emotional issues in earlier ages, what with ‘fault-based divorce’, punitive alimony and intensely adversarial litigation designed to make one party feel shame for the breaking of the marriage.  Of course, these procedures caused immense discomfort, both for lawyers and participants, and have been revised and distilled to take the emotional pain out of the courtroom.

Even worse, lawyers have been systematically taught to ignore emotion and leave that out of their analysis of a case.  We aren’t trained in these issues and thus we enter private practice most often underprepared to guide our clients.  This information is offered to guide anyone looking to hire an attorney to assist in a divorce to know what to look for in hiring an attorney.  Given that the logical issues in a divorce are straightforward, if the issues in your divorce are solely logical, you need not worry about hiring a lawyer who is sensitive to the emotional side of your case.  In fact, if the financial situation of your marriage is transparent (meaning everyone already knows what you have, what you owe and where it is) you may not even need a lawyer at all. On the other hand, if you need emotional guidance as well, consider hiring a lawyer like one at the Bromund Law Group; a lawyer who is sensitive to the emotional side of your case.

To assist our clients in this sphere, we focus on our client’s interests, and not just their positions.  What’s the difference between an interest and a position?

Your interests are those values and substantive elements of your life that are necessary to make your pursuit of happiness possible.  Your positions are those objectives that you perceive to be at stake in the current transaction.

  • In buying a car, for example, your interest is in obtaining safe transportation for a cost you can bear that satisfies your personal sense of style and makes a statement about who you want to be seen to be.
  • Your position might be that a Toyota Prius is the right car for you, provided it has less than 5,000 miles and costs less than $30,000.

In a divorce, your positions likely appear to be in conflict with your soon-to-be-ex.  You have to cut your wealth in half and find a way to get as much time as possible with your kids, minimizing your debts and maximizing your ability to take long-term security out of the end of your relationship.  Since anything you receive comes out of the limited pool of wealth that goes to your ex, the conflict in a divorce is hard-wired into the process.  Even worse, no one enters a marriage with an eye towards it ending; the end of the relationship ALWAYS involves some sort of betrayal of trust or breach of expectations.  These positions come with strong emotions and those emotions can blind a person to the existence of interests underneath these positions. 

Your interests, on the other hand, may frequently have overlaps with those of your soon-to-be-ex.  You both likely want to see the wealth consumed by the divorce process minimized.  You both likely want your children to come out of the process happy and free of emotional injury.  You both likely want to avoid losing valuable work time to court hearings.  Finally, you both want to see this process end without increasing your negative feelings toward one another.

The Bromund Law Group focuses on your interests, using that focus to guide you into possible agreements that maximize your ability to achieve those interests.  We listen actively and pay close attention to your experience with your spouse because that will allow us to recognize what interests your spouse appreciates.  After all, while everyone has the interests we described above, not everyone can see that these interests are more important than their positions, especially when the issue of emotional injury is foremost in someone’s perception.

How does this work?

Example:  You have decided to seek a divorce because your spouse won’t give up lying to you about his affairs outside of the marriage.  His infidelity have cost your family thousands of dollars, putting a huge financial strain on your family, and put you in a position of shame and danger since his behavior has become notorious in your community.

Positions:  (You)Anger due to his betrayal requiring that he be shamed, to punish him for your shaming and Penalties sufficient to make you feel financially safe secure; (Him) Embarassment resulting in anger towards you, Fear about losing access to his children and the respect they have offered him inside his family; (Both) Fear about the court process and the control over their family life they are about to lose to strangers in court.

Interests:  Division of assets and obligations that maximizes your abilities to live life independently; a relationship with your children that maintains the role of parent/child; emotional support to sustain you through the divorce.

Our approach?  We would give you a safe place to vent your upset over his conduct and, in due time, make clear to you what you need to realize that the court process will not give you.  We would then move into a negotiation process that would give you a safe space to build a life of self-sufficiency (sometimes involving obtaining court orders on support, possession of assets, and child custody) and insure a parenting dialogue that leaves your relationship issues to the side (parenting is a paramount value that cannot be addressed at the same time as the relationship damage).  Finally, if at all possible, we would set up a safe space for emotional healing be it either together or apart.  The court doesn’t carry any of this load so our ability to make this happen depends entirely on the willingness of you both to engage in the process; if he doesn’t want to jump in, then we will simply ensure you don’t go forward expecting him to change.

Our role is to advance your interests and not just your positions.  There are lawyers who will focus on your positions, and if what you want more than anything else is to inflict pain on your ex, we will recommend them to you.  Our focus is to make you capable of pursuing happiness and that doesn’t come through inflicting unnecessary pain.

If this approach appeals to you, feel free to call us or recommend your friends to us.  Our initial consultation is always free and, whenever possible, we charge a flat fee for our services.  Please call 805.650.1100 to begin your process today.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

This article contains information and opinions of a general nature and is not intended to provide legal advice for your specific situation.  If you currently have a matter pending, feel free to contact a competent legal professional to obtain advice specific to your needs.  The Bromund Law Group has attorneys licensed in the state of California but nothing in this article creates an attorney-client relationship with any person who reads this article or comments upon it. 

No, No Notarios!

by Adriana

February 20th, 2014

no notarioas

California Assembly Bill 1159 went into effect January 2014. It is designed to stop current and potential opportunism related to the possible passage of a Federal Immigration Reform Bill. The California Legislature is justifiably worried about dishonest attorneys, immigration consultants, and so-called “notarios” who prey on the immigrant population by charging immigrants for services they could not yet provide.

AB 1159 cracks down on those con-men who promise to deliver legal status under the new Federal Immigration Reform Act before its passage. AB 1159 puts greater protections in place and punishes false advertising and fraudulent contracts for services which cannot be provided. Additionally, because “notario” translates to “lawyer” in many Latin American countries, unsuspecting immigrants often assume they are getting representation from a lawyer. AB 1159 forbids someone from identifying themselves as a “notario” unless they are an attorney.

The Calfornia State Bar has put together a PSA on the subject, which is available below. If you have questions about immigration or you want help protecting your rights call the Bromund Law Group for a free consultation with an experienced immigration attorney.

Oprima aqui para ver el PSA

Click Here For More Information in English.

You Have the Right to….Do What?

by Matthew Bromund

Principal Attorney
January 23rd, 2014

Know Your Rights

A police officer detains you on the street, starts asking you questions and demanding you produce identification, registration, licenses and other documents to satisfy official curiosity about you.  You might suspect you have certain rights to decline to provide this information but you don’t want to be wrong and end up on the receiving end of the ‘use of force spectrum’ that today’s public safety officers are trained to employ to insure ‘officer safety’.  It is our foremost advice that you do not provide any officer an excuse to use force on you.  Do not enter an aggressive posture, do not use profanity and do not resist any physical force used upon you, no matter how upsetting or unjustified it may be.  Your safety and survival is the first objective of any interaction with police. Our second piece of advice is to remember that, even before you are arrested,

YOU HAVE THE RIGHT TO REMAIN SILENT.  You are not obliged to tell the police who you are, where you are going, where you are coming from, or what you are doing in a public area.  Before the police are entitled to that information, they must suspect you of committing a crime.  Most, if not all, citizens who are later arrested and charged with a crime end up finding that their own statements to police constitute the initial, and occasionally only, evidence against them.  Every single day, I review police reports where the evidence for guilt comes almost exclusively from the statements of my client, the accused.  There is simply no reason for people to talk to the police unless they are a victim of a crime and need their help to apprehend the offender. You might be thinking, “But if I am not a criminal why shouldn’t I talk to the police, even when I am not a crime victim?  Police are there to serve the public and help law-abiding citizens like me, right?”  Your thoughts are correct, if our public servants were angels and not humans.  Police officers are trained to think that their job is the apprehension of criminals and that every person on the street could represent a threat to their life.  The days of the neighborhood beat cop who will leave kids to be kids are long gone.  More importantly, we have had full-time legislatures, both in Sacramento and Washington, D.C., concocting every more lengthy criminal codes making almost any action taken in public potentially illegal.  Since IGNORANCE OF THE LAW IS NO DEFENSE, you cannot assume you are ‘law-abiding’ just because you don’t know whether your activity is illegal.   Fortunately, the courts have established that you do have a right to help you in this situation, if you remember to exercise it:

YOU HAVE THE RIGHT TO ASK WHAT CRIME YOU ARE SUSPECTED OF COMMITTING.  If the officer can’t articulate an answer to this question, then you should be released from any detention and allowed to move on.  You do not have to answer any questions prior to receiving an answer to this question.  (Some exceptions apply, for example, if you are driving, the police have the right to see your license and proof of insurance to determine whether or not you are legally entitled to operate a motor vehicle.)  If the officer tells you what crime you are suspected of committing, then you do have the obligation to identify yourself, produce any licenses or permits that may be relevant to the situation…and nothing else.

YOU HAVE THE RIGHT TO REFUSE TO PERFORM ANY PHYSICAL TESTS OR ANSWER QUESTIONS ABOUT WHAT YOU ARE DOING.  So many people believe that they have to comply with the orders of a police officer and yet there is simply no legal basis to justify this belief.  Police have the power to make orders for public safety (‘Everybody leave this area, there is an armed gunman inside that house.’), to detain a suspected criminal (‘Put your hands behind your back while I hand-cuff you and search you for weapons.’) and to insure their own safety when there is an apparent threat (‘Drop your weapon.’).  They do not have the power to compel you to perform feats of balance, memory or dexterity.  Your participation in any of these is ‘voluntary’ at law, meaning you can say no. To maintain a republic of free citizens, it is critical that the citizenry exercise their rights.  Some are doing so.  Here is a great example, shown in a 3 minute video and analyzed, phrase-by-phrase, for its legal accuracy in the state of Maine.  The rules for behavior apply everywhere:

1.  Be calm.

2. Be patient and remember, police aren’t used to citizens standing up for their rights.

3.  Be silent whenever possible.

4.  Insist on being treated as a law-abiding citizen and do not use physical force to vindicate your rights.

If you do these things, and are later charged with a crime, your attorney will have the best possible case to win your freedom and vindicate your rights.  The Bromund Law Group specializes in representing those charged with crimes in California, especially in Ventura and Santa Barbara Counties.  If you need help with this sort of situation, please do not hesitate to call us at 805.650.1100.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

This blog offers general insight and opinions and is not intended to address any specific legal case or situation.  Please consult a competent professional before relying upon this blog for your specific situations.

New Developments for Bail Bonds and ICE holds in California

by Adriana

January 16th, 2014

New Developments for Bail Bonds and ICE holds in California

With Immigration reform seemingly stalled in our Federal Legislature, the State of California has taken the lead on some pressing immigration issues on the state level. Assembly Bill 4, which went into effect January 2014, pushes back on the Immigration and Customs Enforcement Agency’s ability to “ICE holds” to force local law enforcement to keep immigrants in custody until they are transferred to Immigration’s custody.

The Legislature has found that ICE holds have been wrongly used to detain both citizens and lawful immigrants without justification. Unlike warrants, ICE holds are not issued by a reviewing authority, and do not need to be supported by any standard of proof, such as reasonable cause. In the past, once an ICE hold was issued, local authorities would not consider releasing the subject of the hold until that person was transferred to Immigration authorities. To read the entire text of the bill, click here : http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB4.

cuffsThis development means that unless the immigrant has pending charges or convictions of certain crimes, local law enforcement is required to release him/her from custody. This is an exciting development which gives Immigration Attorneys a new tool to use to assist our clients who are being wrongfully kept from their families. This development makes it possible for a detained person to argue for a bond in certain situations, and requires immediate release in other situations.

If you have any questions about how this new law may affect you or a loved one, please do not hesitate to contact the Bromund Law Group for a free consultation.

Red Light Camera Tickets in Ventura County

by Matthew Bromund

Principal Attorney
December 27th, 2013

red light camerasHere in Ventura County, California, the red-light camera has been deployed at most of the busiest intersections in two of the county’s larger cities:  Oxnard and Ventura.  The tickets issued through the operation of these devices cost drivers more than $480 each and many people believe two falsehoods about the tickets:  1) that they cannot be issued in error, or challenged effectively in court and 2) that they make the intersections safer.  At the Bromund Law Group, we have a 80% success rate for our clients in contesting these tickets at trial and a 100% certainty that the cameras make intersections more dangerous.  How you ask?

Here are my Top Ten Winning Arguments for Red Light Camera Tickets:

1.    Blurry photo of the driver.

2.    The driver isn’t recognizable as the defendant. 

3.    Driver is not the charged defendant. 

4.    Affidavit of someone not in court identifying our client as the driver.  Not admissible at trial as an affidavit is not competent evidence. 

5.    Yellow Light is too brief.  Vehicle Code Section 21455.7 says that yellow lights cannot be shorter than those provided in the CalTrans Traffic Manual.  (Under present California rules, the minimum yellow light change interval for a left turn or right turn phase is 3.0 seconds.)

red light tickets ventura county

6.    The warning signs are not present or proper in dimension and visibility.  Vehicle Code Section 21455.5 requires the posting of warning signs. The signs must comply with CalTrans specifications:  They must be at least 30″ wide and 42″ inches high, the bottom edge must be at least 7 feet above the pavement level (5 feet in rural areas), and they must be laid-out per the CalTrans design.

7.    The specific camera used to generate your citation was not installed as required by Vehicle Code Section 21455.5.  In 2005, twice in 2008, and twice again in 2010 appellate courts clarified the law, ruling that a city errs if it fails to provide warning tickets for the first thirty days of operation when it adds a new camera to its system.

8.    The light wasn’t actually red at the time you entered the intersection.  Light speed isn’t the only speed that matters when looking at a photograph of a red-light.  California Vehicle Code Section 21453, says:  “A driver facing a steady red… shall stop….”  LEDs (light-emitting diodes), the fastest-acting light source used in signals, can take slightly more than  0.1 second to light-up (turn-on) after the power has been applied.  The key to this defense is close observation of the sequence of pictures showing the relative brightness of the light as the images progress. 

red light tickets ventura county

9.    The ticket wasn’t issued properly.  The police often mail the ticket to the wrong address or send it outside the authorized time period for issuance.  Vehicle Code Section 40518 requires the notice to be sent within 15 days of the alleged violation. 

10. The city may not have a cost-neutral contract with the vendor who runs the camera.  Vehicle Code Section 21455.5 prohibits “pay per ticket” contracts.  21455.5(h) says: (h)(1) A contract [with a red light camera supplier]… may not include… payment… based on the number of citations generated, or as a percentage of the revenue generated…”  Oxnard and Ventura have had, in the past, contracts that do not comply with this law.  Oxnard averages about 600 such tickets per month.  Oxnard signed a new contract in September 2013.  Ventura averages about 780 such tickets per month.  Ventura’s contract is not cost-neutral in regards to ‘rolling right turn’ tickets and thus can be challenged outright in court. 

As for whether or not the cameras make us safer, I cite you to the following:

ventura county red light tickets

  1. Palm Beach did a study, showing that rear-end collisions spiked after the installation of the cameras.  You can read about it here.
  2. If you don’t like studies, how about logic?  Here is a good succint argument about how the cameras change behavior in ways that are not consistent with driver safety. 

The Bromund Law Group’s most recent victory on a red-light camera ticket came on December 6, 2013.  If you would like to help us notch another win, call us today at 805.650.1100.  As a defense attorney, I love to fight these tickets and restore justice to the justice system. 

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

Provisional Unlawful Presence Waiver

by Adriana

December 24th, 2013

Provisional Unlawful Presence Waiver

Jack Seal of Bromund Law Group

On March 4, 2013 USCIS began accepting a new application for a waiver of unlawful presence, called a 601A. This is definitely a step in the right direction! For those who qualify, it means that you can apply for the waiver while still in the United States, and you can get the approval while still in the United States. For those who are granted the waiver, the trip to their country of origin to be formally admitted will take less than a week.

 

Before USCIS began changing this process, the applicant would have to travel to the consulate in their home country (Ciudad Juarez in most cases) and apply for admission before they were even allowed to request a waiver of unlawful presence. This often meant that it would take several months, and upwards of a year to have their waiver processed and hopefully be admitted to the United States.

 

The waiver of unlawful presence is required by most people who are seeking admission to the US (applying for a Green Card in most cases) who have been in the US without permission for six months or more. Current law requires those applicants to wait for several years outside the country (in most cases 10 years) before the US government will allow the applicants to enter. The waiver of unlawful presence is an application for an exception to that rule.

 

The new application (601A) is only available to immediate relatives of US Citizens. It is limited to those applicants who do not require any other waivers, which are usually required for certain criminal convictions. And like the traditional 601 waiver, it requires a showing of extreme hardship to the applicant’s immediate relatives who are already legally present in the United States.

 

I have posted a link below to the USCIS website and the instructions for the form, but call today to schedule a free consultation with the Bromund Law Group if you would like to discuss this, or any other immigration issue!

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=26215a63d813d310VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

 

Jack D. Seal

Attorney at the Bromund Law Group

Immigration Reform

by Adriana

December 20th, 2013

Immigration Reform

 white house

The United States’ Senate continues to work out the details of a comprehensive immigration reform bill, currently referred to as the Border Security, Economic Opportunity, and Immigration Modernization Act, and we remain confident that they will get the reform passed before the end of summer. The basics of the immigration reform seem largely unchanged: those unlawful immigrants who were present before the end of 2011 should have a path to legalization. There will probably be requirements that all applicants have addressed all past income tax issues in the US, and there will probably be some sort of financial penalty. The financial penalty will probably be similar to the penalty we saw a few decades ago with the INA 245(i) penalty of $1000.

 

It looks like applicants will be on some sort of probationary status for an extended period, but will have work authorization and the ability to get a driver’s license. Applicants will be on the path to Lawful Resident status, with the ability to eventually naturalize and become US Citizens.

 

Many issues have yet to be resolved, and any reform is likely to be accompanied by improved border security which will make it far more difficult to enter the US without permission. There is a renewed push to improve biometric technology at the border, which is a hotly contested (and very expensive) issue.

 

There will certainly be strict rules for those with criminal convictions. It is extremely important for any non US Citizen consult an immigration attorney if they are facing criminal charges, and perhaps even more so for unlawful immigrants. For anyone who has been in trouble with the law or who has had contact with Immigration authorities, it is a good idea to submit a request under the Freedom of Information Act to examine the records the government has related to the applicant.

 

http://www.schumer.senate.gov/forms/immigration.pdf

 

Jack D. Seal

Attorney at Bromund Law Group

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

You have the right to remain silent, but do you have the Ability?

by Matthew Bromund

Principal Attorney
October 30th, 2013

Most people know that when you are arrested the police are required to give you the Miranda warnings before they ask you questions.  Its so much a part of our culture that the warnings on this card can likely be recited, from memory, by just about anyone over the age of 13:

miranda warningYou have these rights even before you are arrested.  You just don’t think about it.  In fact, most people don’t think about it even after police read these rights to them.  That’s because you have heard it so often the meaning has completely vanished and it is just a stream of words, like the Pledge of Allegiance, or the Lord’s Prayer.  (I know all of these mean a lot to many people, but when was the last time you really thought through these words and their meaning?)

In California, you are not required to perform tests (like Field Sobriety Tests), answer questions (like “have you been drinking?” “where are you coming from?” “do you know why I pulled you over?”), or do more than comply with the lawful commands of a sworn peace officer.  When you do so, you are helping the police convict you of a crime.

The police are NOT on a ‘quest for the truth’.  Once they have decided you committed a crime, they are on a hunt for evidence to convict you.  If you are guilty, they don’t need your help; facts speak for themselves.  If you are innocent, your words can make you appear guilty because the police are only listening for the words that support their decision that you committed a crime.  Other words you say will be discounted as self-serving, misquoted to support the theory of guilt, or completely ignored.  Intentionally or not, the police officer will be focused on those things that support a conclusion of guilt.

If you are driving, you ARE required to consent to have your blood drawn, if you want to have a chance to avoid having your license suspended.  This is done under the ‘Implied Consent’ law.   But the police don’t get to take you to have your blood drawn if they don’t have probable cause to arrest you for suspicion of DUI; most of the time it is your words and actions on field sobriety tests, and not your driving, that give the officer probable cause for that arrest.  Of course, implied consent only matters for your driving privilege, for a criminal conviction a different rule applies.

For the crime of DUI, and most other alleged crimes, the police cannot take evidence without your consent or a search warrant.  The new rule on DUI investigations is important, and it is one that the courts in California are going to need years to sort out.  For now, just understand that your rights to personal privacy include your blood, the contents of your home, and the information on your cell phone…if you don’t give the police your consent to access these private items.

In almost all criminal cases, the statements of the innocent defendant make the case for the prosecution.  If the innocent simply remembered to remain silent, to ignore the techniques and threats of law enforcement, and to rely upon their constitutional rights, their liberty would much more often be preserved.

 

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

 

This post is intended for general information only and is not intended to address your specific situation.  For more specific advice, you should contact a licensed competent professional in your jurisdiction.  This document in no way creates or implies an attorney-client relationship between any reader and the Bromund Law Group or Matthew Bromund.  If you require specific legal advice in California, please do not hesitate to contact the Bromund Law Group at 805.650.1100.

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. 

The Limits of Courts to shape the Constitution: DOMA

by Adriana

July 15th, 2013

Welcome to the Bromund Law Group’s law blog. Here we will be sharing the thoughts and analysis of Bromund Law Group attorneys on legal issues of the day and significant concepts relating to the law in the United States. We have four lawyers in this firm now and each one of us has our own unique perspective on the law. In a Republic, that is entirely to be expected, and I hope the reading public will join in on this discussion to make our blog a forum for active citizenship. While we are all advocates for our clients first and foremost, we are also active citizens committed to making ours a ‘more perfect union’.

The first topic for discussion is the Defense of Marriage Act and the recent Supreme Court decision declaring that Congress lacked the constitutional authority to pass this law. The Supreme Court’s action, as noted by Justice Scalia in his dissent, moves the power of judicial review into the arena of cases where there is no controversy between the parties to the lawsuit. (In the DOMA case before the Supreme Court, both parties to the lawsuit agreed that DOMA was unconstitutional.) This is dangerous as it makes the Supreme Court into a ‘super-legislature’ able to declare laws unconstitutional even if there is no controversy between litigants.

Why does this matter? We don’t elect the justices to the Supreme Court and we do not have any means of limiting their power to govern us if their authority sweeps out to embrace any question of constitutional significance. For this reason, the Constitution explicitly limits the federal judicial power to adjudicating cases and controversies, not reviewing all laws and regulations. If this extension becomes accepted, we lose the ability to govern ourselves and instead hand over our sovereignty to the bare majority of judges appointed for lifetime terms.

Please note that this opinion does not address the subject matter of DOMA. I am no homophobe, nor do I have hate in my heart for anyone’s consensual expression of love between adults, so please do not jump to that conclusion. My view is that of a lawyer, focusing on how the means of resolving important questions affects our ability to be self-governing. In that sense, the Supreme Court did violence to the Constitution in this decision, and thereby harmed our republic’s ability to be ‘of the people, by the people, and for the people.

Here’s an excerpt from his dissent: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

For me, I entirely agree with Abraham Lincoln, who (in reference to the horribly evil Dred Scott decision) said, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

And, in case you were curious, I think that the word ‘marriage’ ought to be one that has a social meaning only. I believe that the legal status conveying benefits of inheritance, tax status, and community estates, ought to be ‘legal union’ or ‘domestic corporation’ and that such a term ought to be open to any combination of consenting adults. In the 21st century, I don’t think we have a society of such moral homogeneity that it is appropriate to impose upon all citizens the views of the modern Christian faith (one man/one woman, unified for life until one or the other of them decised to terminate the relationship at their discretion and with the payment of fees to a state court).

Since ‘traditional marriage’, as opponents of same-sex unions promote, is, in fact, the law nowhere in the United States. Traditional marriage is one man-one woman-till-death-do-you-part. Such a standard is the law nowhere.

In a nation with my views, ‘marriage’ would become a term like ‘dating’, ‘in a relationship’, ‘friendship’, or (for some) ‘brother’ or ‘sister’ insofar as it is up to the people using the term to assert its application to their relationship confidently and NOONE has the right to naysay them defining their relationship for them. The nations would only have a right to give benefits, or not, for relationships that the parties elect to submit to the requirements of the state, namely that of licensure and a mandated process for dissolution. I think such a change would be a LOT healthier for our republic.

But we won’t be going that way, even if it happened that the majority of people happened to decide my ideas of how to found the legal instutions conveying benefits for social relationships were adopted. Instead, as a result of our continued shrinking sphere of legislative responsibility for Congress and the states, we will need to await the Supreme Court’s decision to enact this policy change (or any other) according to their sense of what the Constitution means at that time, to them. That doesn’t strike me as self-government.

My worry is that every time the Supreme Court moves the society forward (Brown v. Board, Roe v. Wade, DOMA, etc.) it makes our political branches less responsible for progress and our Republic less self-governing. Congress used to be the forum for our civil liberties expansion (Alien and Sedition Act debate 1797-1801, Civil Rights Act of 1864, the abolition of slavery, the extension of the franchise to women, Prohibition and its Repeal) but as the Court has extended its reach since the 1930s, Congress has become ever-pettier and our civics ever-more impoverished. Lawyers alone cannot govern a nation.

When we try to, we occassionally get it horrifically wrong. Don’t think so? Let me refer you to a few of the Supreme Court’s Greatest Failures:

Plessy v. Ferguson (1857) (Plessy v. Ferguson discussion by PBS) wherein the Supreme Court declared that, “Negroes have no rights, which the white man is bound to respect.” It didn’t cause the Civil War but it did make certain that, even after 600,000 people died to free a race of people from the bonds of slavery, the law would continue the evil lie that ‘all men are created equal’ didn’t include people whose physiognomy included enough melanin to make them appear darker than a person whose forebears came from the North of the North African coast of the Mediterranean Sea. (I have serious biological basis for what people socially identify as a race, so if my phrasing is awkward its because I don’t happen to believe the terms ‘White’, ‘Black’, ‘African American’, etc. are of any useful descriptive quality.)

Muller v. Oregon (1908) wherein the Supreme Court decided it would authorize the government to regulate the working hours of women on the basis of racial welfare. “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength of the race.”

Kelo v. New London (2005) wherein the Supreme Court decided that the authority of the government to seize private property for public use, paying the owner the current market value of the property, could be employed when the ‘public use’ consisted of selling the land to a private entity for commercial development that would generate more tax revenue for the state. This extension of the ‘takings’ power of the government makes the power so great as to render private property rights irrelevant in the face of a wealthy party who extends a bribe to the public purse to consume someone else’s land. Before this, a private entity had to engage in a voluntary exchange with another private entity to acquire title to land, thereby leaving each of us secure on our own land unless some public need (road, aqueduct, etc.) was apparent. Now, your rights are only secure until someone bribes the government to condemn your land and transfer it to their use.

Lone Wolf v. Hitchcock (1903) wherein the Supreme Court decided the “plenary power” of the United States Congress gave it authority to unilaterally abrogate treaty obligations between the United States and Native American tribes. The decision marked a departure from the holdings of Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Given how completely horrible our nation’s history is at fulfilling the treaties even before abrogation, it is shocking to see the Supreme Court go the ‘extra mile’ to make a ‘dependent domestic nation’ into a legal non-entity for no apparent reason.

The Supreme Court writes well, most of the time. It provides a final resolution for lawsuits. These two attributes are useful for our Republic and deserve to be honored and respected.

But it is no fortress of righteousness or bastion for the protection of liberty or self-government. Its actions over the last century have consistently reduced the scope and responsibility of our representative branches of government; and we should arrest that development if we hope to retain our rights under the Constitution our forebears drafted and ratified.