Three strikes (3-strikes) is a sentencing scheme in California that dramatically increases punishment for people that are repeat offenders.

If you or someone you care about has been charged with a felony in California, and has a prior criminal record, it is critical to consult with a skilled Southern California Three Strikes Lawyer right away.

Choose the links below to learn about Sentencing Under the Three Strikes (3-Strikes) law, what “strikes” are, and how to defend against a Three Strikes (3-Strikes) case.

Sentencing Under Three Strikes (3-strikes)

Under California law a defendant who commits any felony, that has two or more “strike” priors, must be sentenced to at least 25-years-to-life in State Prison.

Under California law a defendant who commits any felony with one “strike” prior must be sentenced to a doubled term on the current felony.

BEWARE! The current felony does not have to be a serious or violent felony; any felony will do. It is where the prior convictions are serious or violent felonies that the Three Strikes (3-Strikes) law comes into effect.

Also unique in Three Strikes (3-Strikes) cases is the reduction in “good behavior” credits. A defendant who commits a felony with one “strike” prior must serve at least 80% of their sentence in prison; good behavior credits cannot exceed one-fifth of the total prison term. Compare this to non-strike cases, where up to 50% of the sentence may be reduced because of good behavior credits.

If you or someone you care about has been charged in a Three Strikes (3-Strikes) case, please consult with a qualified California Three Strikes (3-Strikes) defense attorney right away.

What is a Strike?

A strike is a prior conviction of a serious or violent felony. They are listed in the California Penal Code. Serious felonies are listed at Penal Code Section 1192.7 (c), while violent felonies are listed at Penal Code Section 667.5 (c).

The California Three Strikes (3-Strikes) law went into effect on March 7, 1994. This means that the current felony must have occurred after the effective date to trigger Three Strikes (3-Strikes) sentencing. However, the prior strike convictions could have occurred at any time. This means that priors from before March 7, 1994 count as strikes, even though the Three Strikes (3-Strikes) law had not been implemented yet.

Defending a Three Strikes (3-Strikes) Case

A skilled California criminal defense attorney can help. The first course of action is to determine whether there is a defense to the current felony case. Only a California criminal defense lawyer can assist in making this determination. It is therefore critical that if you or someone you care about has been charged in a Three Strikes (3-Strikes) case, that you consult with a skilled California criminal defense attorney at once.

It is possible to persuade the judge to dismiss a “strike” prior, and thereby avoid a 3-Strikes sentence. This can occur before, during, or after trial, up to the time that judgment is pronounced.

It is also possible to reduce a “wobbler” to a misdemeanor, and avoid a Three Strikes (3-Strikes) sentence. A “wobbler” is a case that can be charged as a misdemeanor or a felony. Although the prosecutor may be seeking a Three Strikes (3-Strikes) sentence by charging a “wobbler” as a felony, it is possible to persuade a judge to declare the current charge a misdemeanor, and avoid a Three Strikes (3-Strikes) sentence.

Where the current felony charge is drug-related, it is still possible to persuade the judge to allow diversion, although this is a decision that should not be made without first consulting a qualified California criminal defense lawyer.

If you or someone you care about is facing California criminal charges, contact a criminal defense attorney at once.

Visit Los Angeles, Orange County and Ventura, California based Criminal Defense Lawyer Darren Kavinoky’s Drunk Driving Guide website to get additional information about drunk driving (DUI / DWI) and California DUI laws and penalties.

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, “During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

A Pitchess motion is a type of pre-trial motion that may be raised by a defendant who suspects that the arresting officer has engaged in previous misconduct which may be relevant to his or her defense. This motion seeks personal information contained in the officer’s personnel file, including any complaints about racial bias, false arrest, the planting of evidence or any other criminal conduct. Because the rules that regulate when and how this information may be disclosed are technical and complex, it is critical that an individual accused of a marijuana-related offense in this state hires an experienced criminal defense lawyer who understands how to effectively write and argue a Pitchess motion.

Pitchess motions are designed to allow an individual who believes that an officer involved in his or her arrest or subsequent criminal investigation engaged in any type of misconduct the opportunity to investigate that claim and use any discovered, relevant information to aid in his or her defense. However, this information is not freely available, as the legislature and courts both agree that officers have a compelling interest in maintaining the privacy of their personal information as well. As a result, a judge hearing a Pitchess motion must decide which party has a more compelling claim based on the facts before him or her.

Pitchess hearings basically involve two steps – the defense establishing “good cause” for the requested information and the judge reviewing the officer’s records if that burden is met. Every Pitchess request will not result in a review of an officer’s file. The defense must first present specific facts that support their position. This burden is relatively low, as the defense must only show that the alleged misconduct “could have” taken place, not that it necessarily did. The purpose for this step is to determine exactly what type of records are being sought. One of the issues that a judge will consider when reviewing a Pitchess motion is scope. A defendant seeking access to everything in an officer’s package will not likely move a judge. An officer’s personnel packet contains all records that are maintained by the employing law enforcement agency, including Human Resources records, psychological and medical information, citizen complaints and internal affairs investigations. If a defendant specifically alleges that the officer planted evidence (either in the form of marijuana or paraphernalia, for example), a motion seeking evidence of similar complaints would more likely produce the desired information than a motion seeking everything in the file. Even if everything were requested and, assuming the defense’s burden was met, the judge would determine which information would be relevant to the complaint and would only provide the information that he or she deemed relevant. Citizen complaints that the officer used excessive force, for example, would typically be ruled irrelevant and therefore not be disclosed.

The second step in the process assumes that the first step was successful and involves the judge’s review of the officer’s file to determine if there is any information that is relevant to the defendant’s complaint and, if so, whether it is legally permissible to disclose it.

Because the rules that regulate Pitchess motions and hearings are so specific, prevailing in one requires the skill and experience of a seasoned criminal attorney. The unsurpassed lawyers at The Kavinoky Law Firm understand how to effectively raise and argue a Pitchess motion so that the requested information will likely be revealed. They have mastered all of the laws that relate to California marijuana defense, which include all of the different issues and motions that may be raised prior to and up through their client’s trial. For more information from an exceptional firm, contact them today for a free consultation.

Sentencing refers to the punishment that a judge imposes upon a defendant who has either plead guilty to a charge or who was convicted following a judge or jury trial. For California cases that involve marijuana-related charges, sentences may include probation, jail or prison time, fines, electronic monitoring (also known as house arrest) and a variety of diversionary drug treatment programs. In order to have obtain the least restrictive sentence, it is critical that an individual accused of a marijuana-related offense in this state hires an experienced California criminal defense lawyer who specializes in this area of the law and who therefore knows all of the different sentencing options available for each type of offense and the most compelling arguments to persuade a judge to impose those requested.

Penalties for the most commonly prosecuted marijuana-related offenses are listed under the “penalties” section of the main outline and may typically be found within each offense’s primary article as well. This article serves to briefly describe the alternative sentences that are only applicable to certain offenses, including a Proposition 36 sentence, diversion, drug court, sober living, drug rehabilitation and the electronic monitoring program.

Proposition 36, also known as The Substance Abuse and Crime Prevention Act, is a law that permits many first and second time marijuana offenders to participate in drug treatment as an alternative to serving time in jail or prison. Up to one year of treatment may be ordered, followed by an additional six months of follow-up care. It should be noted that this type of sentencing is available for a simple possession of marijuana charge and is not applicable to crimes involving the sale, production or manufacturing of the drug.

Diversion is a bit different, in that it requires an individual to enter a guilty plea before he or she may receive this alternative sentencing option. It is another form of drug treatment – a series of drug education classes – which the defendant must successfully complete in order to eventually withdraw the plea and have the charges against him or her dismissed.

Drug courts exclusively handle cases involving those who have drug problems. Individuals charged with eligible marijuana-related offenses who participate in drug court will receive extensive supervision and treatment that will lessen as one successfully moves through the program. If completed, one’s charges may ultimately be dismissed.

Sober living is another alternative sentencing option that allows an individual to receive credit towards his or her jail and/or fine. Those who reside in a sober living environment are permitted to work and otherwise leave the residence during the day, returning at night to participate in treatment and classes.

Rehabilitation services may be offered to those who are charged with certain marijuana-related crimes. Drug rehab requires an individual to live in an authorized center, which may even be covered by one’s health insurance.

Electronic monitoring (also known as “house arrest”) allows an individual to avoid jail or prison by being restricted in one’s own home. Certain non-violent drug offenders may be given this option, whereby they will be fitted with an ankle-bracelet that electronically keeps track of their whereabouts. Depending on the circumstances, an individual may be permitted to work, do laundry, shop for groceries, do other personal errands and attend court and other court-ordered programs, if pre-approved by the probation department.

There are many eligibility requirements, advantages and disadvantages that are associated with each of these alternative sentencing options, which is why it is imperative that an individual charged with a marijuana offense immediately contacts a skilled California criminal attorney who can explain the differences between these programs. The outstanding attorneys at The Kavinoky Law Firm are well versed when it comes to alternative sentencing for their clients charged with marijuana offenses. They know the arguments that are the most effective at convincing judges and prosecutors to allow their clients to participate in these alternative sentencing options and are dedicated to favorably resolving all cases. To learn more about alternative sentencing, contact these exceptional lawyers today for a free consultation.

Preliminary hearings

Preliminary hearings are one part of the criminal court process that individuals accused of felony marijuana-related charges, in California, will face. The preliminary hearing is one of the most critical phases in all of the proceedings, as charges can be dismissed by the judge at this stage if he or she doesn’t believe that there is enough evidence to prove the defendant’s guilt in a trial. As a result, it is vital that an individual accused of a felony charge involving marijuana in this state contacts an experienced California criminal defense lawyer who specializes in this area of the law and who therefore knows the most compelling arguments to present during a preliminary hearing.

Preliminary hearings are usually held following a defendant’s arraignment if a subsequent plea bargain did not resolve the case. Considered a mini-trial, it is a chance for the defense to see what type of evidence the prosecutor will ultimately use during the trial (assuming that the case goes that far) and a chance to have the charges dismissed entirely if that evidence isn’t deemed sufficient by the judge. “Probable cause” is the standard that the judge uses to make that decision, which basically means that the judge considers whether the prosecutor has presented enough evidence to convince a reasonable jury that the accused is guilty of the charged offense. Those charged with misdemeanor offenses in this state will not participate in this phase of the proceedings.

Preliminary hearings are typically conducted like a one-sided trial. Both sides may “argue” their point-of-view, but it is the prosecutor who puts on his or her case. He or she will usually call witnesses to testify and may introduce physical evidence (if there is any) to further convince the judge that the case should go to trial. Depending on what has been presented, the defense attorney may cross-examine the prosecution’s witnesses, challenge any other evidence that the prosecution offers or may simply try to convince the judge that the government’s case isn’t strong enough to meet the probable cause standard and that, as a result, the charges against his or her client must be dismissed.

Evidence in a marijuana-related preliminary hearing may include, but is by no means limited to, testimony from the arresting officer, from the officer who seized any marijuana or related paraphernalia, from a witness who observed (for example) a marijuana sale or land where the drug was being cultivated, or from a party to a transaction involving marijuana who may have been granted immunity in exchange for his or her testimony against the accused. Physical evidence may include, but again, is not limited to, paraphernalia, photos of the drug in its confiscated form, photos depicting the scene of a manufacturing facility or chemical test results if the charge was for driving under the influence of marijuana.

The exceptional California criminal attorneys at The Kavinoky Law Firm have mastered the art of critically analyzing a police report to recognize the flaws that can be used against the prosecution during a preliminary hearing. Their skilled advocates know what types of arguments are most likely to convince a judge that the evidence presented by the government fails to meet the required burden of proof and, more importantly, know how to convey those arguments in an articulate and persuasive manner. For the most trusted legal advice and for unsurpassed representation during every phase of one’s criminal proceedings, contact The Kavinoky Law Firm today for a free consultation.

A California criminal conviction is a serious matter for anyone, but can be especially devastating for legal or undocumented immigrants. You can be deported or have your visa or green card revoked if you are convicted of a crime. Because the consequences of a California criminal conviction are especially severe for immigrants, it’s critical to have a top defense lawyer on your side ensuring that your rights are protected. The skilled California defense lawyers of The Kavinoky California Immigration Lawyers have the advanced knowledge needed to protect your rights and your freedom if you’re facing any type of criminal charge.

The best way to avoid any type of immigration action as a result of a California criminal charge is to prevent a criminal conviction in the first place. The top California defense lawyers of The Kavinoky Law Firm can thoroughly analyze your criminal case to determine the most promising defense strategy, and take aggressive action to strengthen your defense.

Not every criminal conviction will result in deportation or revocation of a visa or green card, so if you’re facing immigration issues, it’s critical for your California defense lawyer to thoroughly research the charges you face and your options to determine the best course of action.
In some cases, a skillfully negotiated plea bargain is the best option in a California criminal case where immigration issues exist. If the case as charged would result in deportation if you’re convicted, it may be possible for your California defense lawyer to negotiate a plea bargain that allows you to plead guilty to a lesser charge that doesn’t carry immigration consequences.

If you have already pleaded guilty to a California criminal charge and learned that it will lead to your deportation, it may be possible to withdraw your guilty plea based on the argument that you did not understand the consequences of your guilty plea. If you are allowed to withdraw your guilty plea, your California criminal case will start over again, and you’ll have to defend yourself against the charges you face.

Since 9/11, immigration policy in the United States has become progressively harsher. More crimes are falling into the category of deportable offenses, and deportation hearings are taking place regularly. Given the current national security climate, it is crucial to hire an attorney who can stand up for you and illustrate that you are not the person or the type of person that should suffer deportation. It takes experience and specialized knowledge to deal with immigration consequences of criminal convictions.

The consequences of a criminal conviction can be extremely harsh for immigrants, but the top California Immigration Lawyers of The Kavinoky Law Firm can help. Our experienced defense attorneys are ready to thoroughly analyze your case to determine the best course of action and fight for your rights. Contact a knowledgeable California defense attorney today at 1-800-NO-CUFFS for a free consultation.

Motion to Suppress Evidence

A motion to suppress evidence is based upon the idea that evidence has been illegally obtained as the product of a search or seizure that violates the Constitution. The court decides this issue after a hearing in which the defense attorney cross-examines the officers involved in the case, and presents legal argument about why the evidence should be suppressed. If this motion is successful, the case may be dismissed entirely.

There are different laws that govern whether or not a search is illegal, depending upon what is searched and who does the searching. For example, the law recognizes a greater expectation of privacy in a person’s house, than they do in a person’s car. This is because cars are more exposed to the public because of their many windows, and because of their mobility. An experienced California DUI criminal defense attorney will be able to spot these issues, analyze them properly, and make a forceful argument on your behalf in court.

A criminal defense lawyer can make a Motion to Suppress and return property or any tangible or intangible thing obtained as a result of an unlawful search or seizure. A suppression motion does not keep out statements obtained in violation of the Constitution, nor litigate the legality of identification procedures and police lineups, for these do not specifically relate to the search or seizure. However, physical evidence seized as the result of a statement obtained in violation of the Fifth Amendment may be suppressed through a suppression motion.

Evidence that has been previously suppressed cannot be used to revoke probation. If the prosecutor is able to proceed to trial notwithstanding the fact that evidence has been suppressed, the illegally-seized evidence can be sued to impeach the defendant if he or she testifies. Illegally-seized evidence which has been suppressed should certainly not be introduced against the defendant at a sentencing hearing.

Because the Motion to Suppress Evidence is so powerful, and can result in the entire case being dismissed, it is important that every criminal case be scrutinized by a criminal defense lawyer who is well-versed in search and seizure law. An experienced criminal defense attorney will be able to determine whether a Motion to Suppress Evidence is a worthwhile undertaking.

It is possible for the government to seize the fruits of the drug trade in what is called a forfeiture action. This can include cars, homes, cash, and any other asset. A skilled criminal defense attorney can work to protect assets from forfeiture.

If you or someone you care about has been charged with a crime, it may be possible to suppress the evidence to be used against them. By so doing, the prosecution may be unable to proceed, and the charges dismissed. Please contact our law firm for a free consultation to determine whether a suppression motion may help in your case. The Kavinoky Law Firm is dedicated to criminal defense. One hundred percent of our practice is criminal defense work. It would be our pleasure to consult with you regarding your case at no cost or obligation.

Evading the police seems to have become a commonplace theme these days. Every month it seems there’s another futile police pursuit. The guy behind the wheel, while evading the police, is doing little more than racking up three misdemeanors that are all punishable by incarceration for up to one year, and each misdemeanor carries its own fine.

In California it is illegal to evade a police officer if that police officer indicates to you that you should stop or pull over. You can go to county jail for one year if you fail to stop. The statute provides that you must pull over if there is at least one lighted lamp that can reasonably be seen, there is a siren that can reasonably be heard, the peace officer’s car is distinctly marked, and there is in fact a police officer in the vehicle.

This statute doesn’t simply apply for people who may actually be trying to avoid the police. It applies to people who perhaps do not hear well and therefore did not hear a siren trying to pull them over. These people will be pursued by the police until, eventually, a stop is made. The driver who couldn’t hear the siren will then not only be charged for speeding or not having updated tags, but there will be an additional charge of evading a peace officer for the motorist to face. A qualified criminal defense attorney well versed in the Vehicle Code, can help create a strategy to get the unfortunate motorist off the hook.

Peace officers on bicycles are to be treated with the same deference as one shows officers in cars and on horses and motorcycles. Therefore, if a police officer on a bicycle signals for you to pull over, you must do so or face the threat of doing time in county jail.

The Vehicle Code also provides that it is a misdemeanor to engage in reckless driving while evading an officer of the law. This crime is a punishable by up to yet another year in county jail. It is also considered a misdemeanor to drive with a willful or wanton disregard for the safety of person or property. This misdemeanor is also punishable by a fine of not less than one thousand dollars and no more than ten thousand dollars. Even though these crimes are considered misdemeanors and fall under the Vehicle Code, does not mean that one should not immediately seek a free case evaluation from The Kavinoky Law Firm.

The California Vehicle Code states that if, in fleeing the police, a person causes serious bodily injury to another the crime will be punishable by up to seven years in state prison. Vehicle Code 2800.3 indicates that if a person evading a police officer causes the death of another during the course of the evasion, that person may be sentenced to up to ten years in state prison. For those who are charged under Vehicle Code 2800.3, they are also likely to be charged under the California Penal Code, too. They may face charges ranging from manslaughter to murder in the second degree.

It is a crime to resist a peace officer. Resisting a peace officer in the broader area of California goes beyond the typical resisting arrest into the more murky waters of resisting the peace officers in general. When a peace officer is performing his or her duties, one cannot willfully interfere with those duties and one will be required to carry out orders given by peace officers in certain cases.

Committing battery upon a peace officer is also a crime in California. The offender may be charged with this crime if he or she commits battery upon doctors, firefighters, police officers or other peace officers. This crime carries with it special considerations in the California criminal justice system. It is best to consult with a qualified attorney who knows the laws if you wish to successfully defend your case.

Punishment in Criminal Court

The punishment that the court can impose is set by statute, but can result in up to one year in county jail for misdemeanor DUI, or even several years in state prison for felony DUI.

There are certain aggravating factors that can result in an increase in punishment beyond the statutory minimums. These include having prior convictions for DUI or related offenses, speeding while D.U.I., having a child in the car, having a blood alcohol level that is .20 or higher, or refusing to submit to a chemical test.

Any punishment imposed by the court is separate from the license suspension or revocation by the DMV. If the court orders a driver’s license restriction, that restriction will begin as soon as the DMV’s restriction ends. They do not run concurrently.

Also, as to any fines, keep in mind that in addition to the base fine amounts described below, the court will add assessments that significantly increase the amount that is owed. The base fine amount will triple when all other mandatory costs and fees are added.

In general, a conviction will result in the following punishment:

First Offense: If the court grants informal, unsupervised probation, there are two options. Both require a base fine ranging from $390 to $1,000, and attendance at a 3-month alcohol/drug education program (6-month program if there is a BAC of .20 or higher, or if there is a refusal to test).

• Option A: 48 hours to 6 months in jail, and a 6-month driver’s license suspension; or,
• Option B: A 90-day driver’s license restriction allowing for driving for work and the alcohol/drug program only.

Without probation, the court may impose 96 hours to 6 months in jail, a $390 to $1,000 base fine, and a 6-month driver’s license suspension.

Second Offense: With unsupervised probation, there are two options, both carrying a base fine of $390 to $1,000, plus either:

• Option A: 10 days to 1 year in jail, and a 2-year driver’s license suspension; or,
• Option B: 96 hours to 1 year in jail, an 18-month (or 30-month) alcohol/drug education program, and a driver’s license restriction for the duration of the program allowing driving only for work and the program.

Without probation, the court may impose 90 days to 1 year in jail, a $390 to $1,000 base fine, and a 2-year driver’s license suspension.

Third Offense: With unsupervised probation, the court will impose a sentence of 120-days to 1 year in jail, a base fine of $390 to $1,000, a 3-year license revocation, and an 18-month alcohol/drug education program if one was not done before.

Without probation, 120-days to 1 year in jail, $390 to $1,000 base fine, and a 3-year license revocation.

Fourth or subsequent Offense: If probation is granted, 180 days to 1 year in jail, a base fine ranging from $390 to $1,000, a 4-year license revocation, and an 18-month program if one has not been done before.

Without probation, the court could sentence anywhere from 6- months to 1 year in county jail, or 16 months, 2, or 3 years in state prison; a base fine of $390 to $1,000; and a 4-year driver’s license revocation.

If you or someone you care about stands accused of DUI, please consult a Southern California DUI Lawyer right away before you even consider pleading guilty.