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Month: March 2021

California Supreme Court’s thoughts on bail reform. Oh, and mine as well.

Posted on by Ross Erlich

The California Supreme Court said on Thursday that judges must consider a suspect’s ability to pay when they set bail essentially requiring that defendants who are indigent be released pending trial, unless they are deemed too dangerous to be released.  Keep in mind that judges can require electronic monitoring, regular check-ins with authorities during the pendency of a case, or order stays at shelters and drug and alcohol treatment in lieu of the cash bail.

The justices, in a unanimous decision, said that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”  This is a major win for those who champion arrestee rights, criminal justice reform, etc.  Back in November, voters were unwilling to remove California’s cash bail system and replace it with a “risk assessment” system that judges would use to determine whether an individual arrestee was a threat to the public and whether that person would return to court for their case.

This decision by the state supreme court does keep California’s cash bail system in-tact, but not for those who cannot afford it.  Prosecutors will now have to prove, by clear and convincing evidence, that a lower-income arrestee is a flight risk or danger to society, unless cash bail is put into place.  On every case.

You might ask yourself, what even is bail or why is it used?  Well, bail is money or property that is “put up” by an arrestee that can be forfeited if they fail to appear to court for their case.  Traditionally, judges have looked to seriousness of the crime, a person’s prior criminal history and any failures to appear at court when determining bail.  Many argued that this allowed for wealthy persons to post bail and remain “free” while they fight their case while poorer, in-custody persons would have to fight their case from inside jail (poor conditions) and this would unduly cause them to take plea deals they wouldn’t otherwise take.

So, what does this mean for you?  Well, if you have resources, own a home, have income or family and/or friends who might financially support you, means probably nothing.  This decision doesn’t look at those who come before a judge at arraignment who have means.  What this means is that if you are out of work, no family supporting you, a low-wage worker, etc., a judge cannot simply keep you in custody via bail if you cannot afford it and you are not deemed a flight risk or a danger to society.  Even then, you might be able to get released without bail so long as you have periodic check-ins with law enforcement, court, etc.

Personally, I think this is a great decision and something that was long overdue.  Professionally, it will likely contribute to less business for me since people who are being held in jail typically want to hire an attorney faster so that we can appear in front of a judge and attempt to get them released without bail, but there is a bigger picture here.  We’ve all seen the wave of criminal justice reform coming and even though I am a private attorney and make a living out of people being taken advantage of by the system, my true passion in life is the reform of this system I, and my clients, have to navigate through on a daily basis.  So yes, it might lead to less money for me, but it is a step in the right direction for everyone to be seen equally in the eyes of the law.

If you, or anyone you know, has questions about bail, pending charges, an arrest or what your legal rights are, contact Los Angeles criminal defense attorney Ross Erlich today or visit the rest of www.rosserlichlaw.com to read more.

Take your kid to (not into the enclosure) the zoo day!

Posted on by Ross Erlich

Many of you have probably heard about the father who took his two-year-old daughter into the elephant enclosure at the San Diego Zoo for a photo opp.  From the video that’s been posted online, you can see the elephant start to approach the two and, when the father is attempting to get out, seems to drop the child and scoop her up just moments before the elephant gets to them.

Turns out that wasn’t the smartest move, for many reasons.  Setting aside the potential for small child/elephant mishaps, the man was promptly arrested for child endangerment and booked on $100,000 bond at the San Diego County jail.  Wonder if he got his picture?

Now, you might ask yourself, seems like a “relatively” minor crime, no?  No one got hurt, there was no ill-intent, no property was damaged or destroyed, shouldn’t this just be a simple issue to resolve?  As many things in the law are, it turns out the answer to that question is “it’s not so simple.”

California punishes “child abuse” and “child endangerment” and “child neglect.”  For purposes of our zoogoer, we’ll be talking about “child endangerment” which is codified in Penal Code 273(a).  Paraphrased for all you non-lawyers out there, that code makes it illegal for someone to willfully exposing a child to unjustifiable pain, suffering or danger, or by subjecting that child to an unreasonable risk of harm, even if the child never actually suffers any harm.  If the conditions are likely to produce great bodily injury or death, that charge is a felony, punishable by up to 2-4-6 years in state prison.  If the conditions are such that there is not likely to be great bodily injury or death, that is a misdemeanor, punishable by no more than 1 year in county jail.

Some examples of how this crime is charged in California include getting arrested for DUI with your child in the car, leaving a child inside a hot car without ventilation, leaving a dangerous weapon where a child can easily access it, failing to get medical treatment for a sick child, and the list goes on.  Chances are, if you have to think about whether the conduct would be considered illegal, it likely will be construed that way.

There are also some additional penalties unique to a conviction for child endangerment that the court has under its discretion.  If probation is granted by the court, the mandatory minimum time of probation (usually 36 months) is increased to 48 months.  There will be a criminal court protective order against the person conviction to protect the victim against any further violence or threats.  The person convicted will have to take, and complete, a 52-week child abuser treatment counseling program and, if any substances or alcohol was used in connection with the incident, the court can order the person convicted to abstain from drugs and/or alcohol and be subject to random testing by the probation department.  These additional penalties are all within the court’s discretion in such that an effective Los Angeles criminal defense attorney can argue and present facts which can prevent these obligations in furtherance of justice.

You might also be thinking, “wait, I never meant for this to happen, why am I being charged with this”?  Well, maybe you shouldn’t be.  Defenses to this conduct include non-intentional “endangerment” conduct, the person was legally disciplining their child, the whole act was a false accusation, someone other than the person being charged was responsible for the child at the time.

This brings us back to our zoogoer.  I would say that most of the general public, and for sure the district attorney’s office who is responsible for enforcing laws and public safety, would argue that taking your child into the elephant enclosure constitutes a situation that could willfully expose that child to unjustifiable pain, suffering or danger, whether or not the child actually suffers.

If you find yourself on the wrong end of an arrest or call from a police officer or detective, it is important to be aware of what you say to them and, hopefully, you don’t say anything until you’ve spoken to your attorney.  Contact Los Angeles criminal defense attorney Ross Erlich today to discuss your case, for free, and see what options you have so you don’t end up in the cage.

Vandalism – more than meets the eye

Posted on by admin

California Penal Code section 594 is the statute the defines what vandalism is.  That section states that “every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, is guilty of vandalism.”  Those acts are 1) graffiti, 2) damaging, or 3) destroying.  In short, if you damage, destroy or cover with graffiti any property that is not yours, that is vandalism.  Thus, it’s not just those young kids spraying graffiti on the walls, it’s items broken during a fight, breaking things in a store, crashing a stolen car, etc.

But, this definition requires that you have malicious or unlawful intent with regards to the damage.  Thus, if you accidentally damaged or defaced someone’s property, you wouldn’t be guilty of vandalism.

Now, many people might view a vandalism case or charge as something relatively minor.  “Hey, I damaged some property and no big deal, I’ll just plead guilty and pay to replace it.”  Well, as the title to this blog reads, it’s a little more than meets the eye.  Upon a conviction for vandalism, fines, yes, fines, can run you anywhere between $400 and $50,000.  Yes, you heard correctly, $50,000.  Much of this depends on the amount of the property that was damaged, but those are just the fines!

So, in addition to owing significant fines to the court for a conviction of vandalism, you might also have to deal with the fact that you’ve actually been convicted of a crime and that your criminal history now reflects that.  If the damage is $400 or more, vandalism can be charged as either a felony or misdemeanor.  If the damage is under $400, the charge will be filed as a misdemeanor.  Thus, any employer or future employer or state licensing board will see this in your background check and this will raise some red flags.  In Los Angeles county, the standard probation for a misdemeanor conviction is 3 years and for those 3 years, you cannot have your conviction expunged unless a judge agrees to terminate that probation early.

Also, the court has the authority, and “shall do so when feasible”, order you to show up and clean, repair or replace the damaged property.  The court can also order that your driver’s license be suspended upon a conviction for vandalism for up to 2 years, order mandatory counseling and/or community service.

So, you might be asking yourself, “what do I do to fight all of these penalties and obligations?”  I thought you would never ask!  There are a number of ways to fight a vandalism charge and the first, in my mind, comes down to whether you actually intended to cause damage to the property or what it an accident or mistake.  Also, what was the nature of the property (shared, formerly yours, not owned, etc).

I would also want to know who the “victim” in the matter is and the relation of that person to my client.  A lot of property damage crimes can be resolved by simply reaching out to the victim and working out a way for that person to be made whole and have their property brought back to the condition it was in prior to the incident or paid for.

There might be a way to get a civil compromise in this case which, if worked out, can have criminal proceedings permanently suspended (effectively case dismissed) if the victim signs off on an agreement that they were made whole and compensated for any out-of-pocket expenses they may have had as a result of the conduct.

In short, you don’t want to get convicted of vandalism or any other property damage crime.  As you can see, there are a number of variables that come with getting convicted and too many options that a judge has discretion over to order as additional penalties against you.  You want to leave as little to discretion as possible and ensure that you get a result that is clear and guaranteed and something that has as little impact on your record and freedom as possible.

Contact Ross Erlich Law for a free case consultation and find out about additional ways to keep yourself free.