Basics of Criminal Court

April 29th, 2016 | Posted by admin in Criminal Law - (0 Comments)

In any criminal case other than most infractions, where the potential for jail or prison time exists, a defendant has the right to be represented by an attorney, even if the defendant cannot afford one. In criminal infraction cases, a defendant also has the right to a lawyer if he or she is arrested and NOT released on his or her written notice to appear, on his or her own recognizance, or after a deposit of bail. The reason is that a criminal proceeding is complicated, and the consequences, besides incarceration (jail or prison time), can be severe. For example, a conviction can result in deportation for noncitizens or prevent a legal resident alien from becoming a citizen.

Certain convictions can prevent persons from holding many types of jobs. Experienced criminal defense attorneys, whether they are for private hire, serve as public defenders, or are appointed by the court, know about the criminal justice system — how it works, which options are available to a defendant, and what the likely outcomes of different options are. Whenever possible, get the help of an experienced criminal defense attorney when you are charged with a crime.

Criminal court is where you go when the state believes you have committed a crime and it files charges against you. Generally, the District Attorney’s Office represents the state. Each county has its own District Attorney’s Office. In some cities certain offenses are prosecuted by the city attorney instead of the district attorney.

Only the government — not another person or private agency — can charge you with a criminal violation.

In criminal court, you are presumed innocent until proven guilty beyond a reasonable doubt.

Difference Between Criminal and Civil Cases

A criminal case happens when the government files a case in court to punish someone (the defendant) for committing a crime. If the defendant is found guilty of a crime, he or she may face jail or prison.

A civil case happens when one person, business, or agency sues another one because of a dispute between them, usually involving money. If someone loses a civil case, they may be ordered to pay the other side money or to give up property, but they will not go to jail just for losing the case.

There are other important differences, like:

  • In a criminal case, the government must prove the defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff must prove his or her case by a “preponderance of the evidence” (more than 50 percent). This means that a party to a civil case can win if he or she is able to convince the judge or jury that his or her side of the case is slightly more convincing than the other side’s.
  •  In criminal cases where the charge is a misdemeanor or felony, if the defendant cannot afford a lawyer, the court will appoint one without cost to the defendant. In civil cases, if a party cannot afford a lawyer, they have to represent themselves. There is no right to a court-appointed lawyer in an infraction case.
  • In criminal cases, defendants almost always have the right to a trial by jury, except in infraction cases. In civil matters, there are many types of cases where there is no right to a trial by jury.

Types of Criminal Cases

There are 3 types of criminal cases:

  • Infractions

An infraction is a minor violation. Many traffic violations are infractions. The punishment for infractions is usually a fine, and if the defendant pays the fine, there is no jail time.

  •  Misdemeanors

A misdemeanor is a crime with a maximum punishment of:
Either 6 months or 1 year in a county jail, and/or
o   A $1,000 fine (for most misdemeanors).

Examples of misdemeanors are:

  • Petty theft

o    Vandalism
o    Driving with a suspended license
o    Drunk driving (also known as “DUI” or “driving under the influence”)

  • Felonies

A felony is the most serious kind of crime. If found guilty, the defendant can be sent to jail or prison for a year or more, or even receive the death penalty for very serious crimes. Defendants convicted of felonies are usually sent to state prison for sentences of 16 months or more.
Examples of felonies are:
o   Robbery
o   Murder
o   Rape
o   Possession of illegal drugs (called “controlled substances”) for sale

Lawyers in Criminal Court

In any misdemeanor or felony criminal case (and any infraction where you have been arrested and NOT released on your written notice to appear, on your own recognizance, or after a deposit of bail), you should have a lawyer. You have the right to represent yourself in criminal court in California. BUT because the consequences of a criminal conviction can be so serious and you can end up in jail or prison, it is best if you have a lawyer represent you.

If you cannot afford your own lawyer, the court will appoint a lawyer for you, often a public defender. Make sure you tell the judge at your arraignment that you cannot afford a lawyer. You may have to fill out a financial affidavit, which is a form where you explain your financial situation under oath and show the court you cannot afford a lawyer.

from California Courts

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Foreclosure

April 22nd, 2016 | Posted by admin in Real Estate - (0 Comments)

What is a foreclosure?

Most people buy a home by borrowing part of the purchase price usually from a bank or a mortgage company.   Other times, a homeowner borrows money against the equity in the property after the home is purchased, and this is called a “home equity loan.” Sometimes people refinance their mortgage loan and combine it with a home equity loan. In all these situations, the lender usually has a lien against the home to secure repayment of the loan. When a buyer fails to make the payments due on the loan (defaults on the loan) the lender can foreclose, which means that the lender can force a sale of the home to pay for the outstanding loan.

The law on foreclosure is changing often. Make sure you read the most updated laws.

Types of foreclosures

In California, lenders can foreclose on deeds of trust or mortgages using a nonjudicial foreclosure process (outside of court) or a judicial foreclosure process (through the courts). The nonjudicial foreclosure process is used most commonly in our state.

  • Nonjudicial foreclosure is the most common type of foreclosure in California. It is used when there is a power-of-sale clause in the deed of trust that secures the mortgage loan by giving the trustee the authority to sell the home to pay off the loan balance at the request of the lender if the borrower defaults (fails to make payments).

When a lender uses the nonjudicial foreclosure process against a borrower who fails to pay on a mortgage for his or her primary residence, the lender gives up the right to collect a deficiency judgment against the borrower. But most lenders prefer this process anyway because it is much faster and less costly.

  • Judicial foreclosure involves filing a lawsuit to get a court order to sell the home (foreclose). It is used when there is no power-of-sale clause in the mortgage or deed of trust. Generally, after the court orders the sale of your home, it will be auctioned off to the highest bidder.

Judicial foreclosures are rare in California. A judicial foreclosure allows the lender to get a deficiency judgment against the borrower. BUT the homeowner has the “right of redemption,” which allows him or her to buy the home back from the successful bidder at the auction for 1 year after the sale. The process is longer and more costly than a nonjudicial foreclosure.

Foreclosure Process

These are the main steps in a nonjudicial foreclosure, which apply to the majority of foreclosures in California.

  1. The lender MUST contact you and anyone else on the mortgage loan to assess your financial situation and explore your options to avoid foreclosure (called a “foreclosure avoidance assessment”). The lender:
    • Cannot start the foreclosure process until at least 30 days after contacting you to make this assessment; and
    • Must advise you during that first contact that you have the right to request another meeting about how to avoid foreclosure. That meeting must be scheduled to take place within 14 days.
    • You can authorize a lawyer, HUD-certified housing counseling agency, or other advisor to talk on your behalf with the lender about ways to avoid foreclosure. You cannot be forced to accept any plan that your representative and the lender come up with during that discussion.
  2. If you and the lender have not worked out a plan to avoid foreclosure, the lender can record a Notice of Default in the county where your home is located, at least 30 days after contacting you for the foreclosure avoidance assessment. This marks the beginning of the formal and public foreclosure process. The lender sends you a copy of this notice by certified mail within 10 business days of recording it. You then have 90 days from the date that the Notice of Default is recorded to “cure” (fix, usually by paying what is owed) the default.
    • WARNING: Since the Notice of Default is recorded as a public document, many fraudulent companies and scam artists search the public records to send defaulted borrowers offers to “help” them avoid losing their homes to foreclosure. These fraudulent companies could take your money and then do nothing to help.
  3. If you do not pay what you owe, a Notice of Sale is recorded (at least 90 days after the Notice of Default is recorded). The Notice of Sale states that the trustee will sell your home at auction in 21 days.The Notice of Sale must:
    • Be sent to you by certified mail.
    • Be published weekly in a newspaper of general circulation in the county where your home is located for 3 consecutive weeks before the sale date.
    • Be posted on your property, as well as in a public place, usually at your local courthouse.
    • Have the date, time, and location of the foreclosure sale; the property address; the trustee’s name, address, and phone number; and a statement that the property will be sold at a public auction.
  4. At least 21 days after the date when the Notice of Sale is recorded the property can be sold at a public auction. The successful bidder must pay the full amount of the bid immediately with cash or a cashier’s check. The successful bidder gets a trustee’s deed once the sale is complete. The lender usually bids at the auction, in the amount of the balance due plus the foreclosure costs. If no one else bids, your home goes to the lender.

Note: Before the foreclosure process begins, the lender or loan servicer may send you letters (over the course of several months) demanding payment. Those letters are NOT notices of default.

Stopping the foreclosure sale

You have up until 5 days before the foreclosure sale to cure the default and stop the process. This is called “reinstatement” of the loan. During the 21-day period after the Notice of Sale is recorded, any person or institution (like a bank) with an interest in your home has the right to redeem the home up until the nonjudicial foreclosure sale/auction. This means that they must pay the entire loan in full.

After the foreclosure

Whoever buys your home at the foreclosure sale/auction cannot just change the locks to the home. The new owner must serve you with a 3-day written notice to “quit” (move out) and, if you do NOT move out in the 3 days, go through the formal eviction process in court in order to get possession of the home. That process typically takes several weeks.

Rights of Tenants During a Foreclosure

If there are tenants in the house that was foreclosed on, the new owner must honor the existing lease. BUT when the tenants have a month-to-month lease or the owner/landlord also lives in the home that is being foreclosed on, the new owner can evict the tenants or former owner/landlord. In these cases, the new owner may either (1) offer the existing tenants a new lease or rental agreement or (2) begin eviction proceedings. If the new owner chooses to evict existing tenants (other than the former owner), the new owner must give the tenants at least 90 days’ notice before starting eviction proceedings.

  • There are other rights that tenants have in eviction cases done after a foreclosure. If a tenant is not named in the complaint for the eviction, he or she may be able to challenge the eviction at any time during the case or even after the judgment for eviction is made. If you are an occupant of a foreclosed property where the new owner filed an eviction case, talk to a lawyer  to learn about your rights.

Tenants in some California cities may still have a right to stay in their buildings. Cities with eviction or rent control laws prohibit new owners from using foreclosure as a reason for evicting tenants.

If you need additional information, talk to a lawyer.

from California Courts

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Before you file a lawsuit in court, you should always consider whether you can resolve your dispute out of court. More and more people are using other ways to solve their legal problems outside of court. These alternatives are called “alternative dispute resolution” or “ADR” for short.

Using ADR to resolve your disputes without going to court can:

  • Save you time, since it can take a lot less time to work out and write up an agreement than go through a trial, which can take a year or more.
  • Save you money, since you can save money on attorney’s fees, court costs and fees, fees for expert witnesses and other expenses. Also, because you finish your case sooner and do not have to go to court, you avoid having to take off from work.
  • Give you more control over the case and the outcome. In ADR, you participate more actively in creating a workable solution than if you go to court and leave the decision up to a judge or a jury. Also, you can create solutions that go beyond what the court can do but that address your situation and your dispute better.

Mediation

In mediation, a neutral and impartial person called a “mediator” helps both sides communicate and try to reach a solution to their dispute that is acceptable to both of them. The mediator does not make any decisions about the dispute. He or she just helps both sides talk through the issues so they can settle the dispute themselves. Mediation leaves the control of the outcome to the parties in the case.

Arbitration

In arbitration, a neutral person called an “arbitrator” hears each side’s position and arguments, looks at the evidence from each side, and makes a decision about the dispute. This decision is called an “award.” Arbitration is less formal than a trial and the rules are more relaxed. Arbitration can be “binding” or “nonbinding.” Binding arbitration means that both sides agree to accept the arbitrator’s decision as final, whether they like it or not. It also means they waive their right to a trial. Nonbinding arbitration means that if either side is not satisfied with the arbitrator’s decision, they can request a trial.

Neutral Evaluation

In neutral evaluation, a neutral person called an “evaluator” listens to summaries of the evidence and arguments of each party. The evaluator then gives his or her opinion of the strengths and weaknesses of each party’s case and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. The evaluator’s opinion is not binding but is often a good basis for trying to work out a settlement of the dispute.

Settlement Conference

In a settlement conference, the parties and their lawyers meet with a judge or a neutral person called “settlement officer” to discuss possible settlement of the dispute. The judge or settlement officer does not make a decision, but helps the parties evaluate the strengths and weaknesses of their cases and negotiate a settlement. Settlement conferences can be mandatory (the court requires the parties to do it) or voluntary (the parties choose to do it). Mandatory settlement conferences are often held close to the date a case is set for trial.

from California Courts

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Juvenile Delinquency

April 8th, 2016 | Posted by admin in Family Law - (0 Comments)

If your child is involved in a juvenile delinquency case that means he or she is accused of breaking the law.

The court will consider how old your child is, how serious the crime is, and the child’s criminal record if any. The court can order that:

  • Your child live with you under court supervision.
  • Your child be put on probation. He or she may have to live with a relative, in a foster home or group home, or in an institution.
  • Your child be put on probation and sent to a probation camp or ranch.
  • Your child can be sent to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (also called “DJJ”). If your child is tried in adult court, he or she will be sent to the Department of Corrections and Rehabilitation, Division of Adult Operations (also called “CDCR”).

If your child is sent to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), he or she will go to a “reception center” for the first 30 to 90 days. The center will find out what education and treatment your child needs. Then your child will go a correctional facility or youth camp.

When a Minor Is Arrested

If your child is arrested, the police can:

  1. Make a record of the arrest and let your child go home.
  2. Send your child to an agency that will shelter, care for, or counsel your child.
  3. Make your child come back to the police station. This is called being “cited back.”
  4. Give you and your child a Notice to Appear. Read the notice and do what it says.
  5. Put your child in juvenile hall (this is called “detention”). Your child can make at least 2 phone calls within 1 hour of being arrested. One call must be to a parent, guardian, relative, or boss. The other call must be to a lawyer.

If the police want to talk to your child about what happened, the police must tell your child about his or her legal rights (called “Miranda rights”), which are:

  • Your child has the right to remain silent.
  • Anything your child says will be used against him or her in court.
  • Your child has the right to a lawyer. If you or your child cannot pay for one, the court will appoint one.

Your child has the right to a lawyer who is effective and prepared. If you cannot pay for a lawyer, the court will get a lawyer for your child. If your child does not have a lawyer, talk to the public defender or another lawyer for advice.

You have rights, too. The police must also tell you as soon as your child is locked up. They have to tell you where your child is and what rights he or she has. But you probably will not need your own lawyer.

Getting a Notice to Appear


Read the Notice to Appear carefully. It will probably tell you to go to the probation department to meet with a probation officer.

Four things can happen at the meeting. The probation officer may:

  1. Lecture your child and let him or her go home.
  2. Let your child do a voluntary program instead of going to court. The program could be special classes, counseling, community service, or other activities. If your child finishes the program, he or she will not have to go to court. You may have to sign a contract that says what the child has to do. The contract can last 6 months.
  3. Send your child home and send the case to the district attorney. The district attorney will decide to file a petition (papers that mean that your child will have to go to court) or not.
  4. Keep your child locked up and send the case to the district attorney. The district attorney will then file a petition, usually within 2 days after the arrest. Your child will have a detention hearing on the next day the court is open. The court is closed on Saturdays, Sundays, and holidays.

If a petition is filed in court, your child’s case will be filed in the juvenile delinquency court.

Trying minors in adult court


Keep in mind that, in some cases, minors can be tried as adults. The three-strikes law says that some serious or violent crimes committed by minors can count as strikes in the future. This can happen even if the records are sealed.

A child who is 14 years old can be tried in adult court for some serious crimes.

Here are some examples:

  • Murder and attempted murder,
  • Setting fire to a building with people in it,
  • Robbery with a weapon,
  • Rape,
  • Kidnapping or carjacking,
  • Crimes with guns,
  • Drug crimes, and
  • Escaping from a juvenile detention facility.

There are big differences between juvenile court and adult court. If the state wants to try your child as an adult, talk to a lawyer about what can happen.

If your child is tried in adult court, he or she child can be sent to adult prison (CDCR). If your child is tried in adult court, talk to a lawyer.

Even if your child is sentenced to adult prison, he or she will stay at the Division of Juvenile Justice (DJJ)  until he or she is at least 16.

If your child is at least 16, the judge can send him or her directly to adult prison. Or if your child’s sentence ends before he or she turns 21, the judge can let him or her stay at the DJJ the whole time. If the sentence is longer, your child will go to adult prison on his or her 18th birthday.

Parental responsibilities when your child is arrested


As a parent (or guardian) you have legal responsibilities. You may also have financial responsibilities for any damage caused by your child. You may have to pay the victim if the court orders “restitution.” Restitution is money to compensate for losses or damage caused by your child. For example, you may have to pay for what your child stole, or for the victim’s medical bills or lost wages. You may also have to pay for your child’s lawyer, juvenile hall services (like food and laundry), and fees to keep your child at the Department of Corrections and Rehabilitation. This can be expensive, so talk to the court about your financial ability to pay for these fees and costs.

You can also ask the probation officer where to get help. You can also get help from your local school district, hospitals, or the mental health department. And it is always a good idea to talk to a lawyer for help.

from California Courts

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Going to Court

April 4th, 2016 | Posted by admin in Uncategorized - (0 Comments)

What you should do to prepare for your upcoming court date depends on what type of case you have. In this section we give you general guidelines for how to best prepare yourself for court. It is possible that you will see something that does not apply to your case. For example, if you have a divorce case, you can ignore the suggestions about preparing to pick a jury. If you have a small claims case, you do not have to worry about the rules of evidence. So keep in mind that these are general suggestions and may not apply to every case.

Before Your Court Date

  • Read your court papers. Understand what each form asks and how the other side has responded.
  • Make a list of your reasons for each request. Write down the answers the other side gives to each request.
  • Observe hearings ahead of time, if you can, in front of the same judge or for the same type of case as yours. Watch lawyers and how they act in the courtroom, how they speak to the judge, how they ask questions, etc.
  • Research any remaining legal issues in your case.
  • Review all discovery (if there has been any).
  • If you are going to have a jury trial, make sure you understand the rules for selecting a jury. Prepare the questions you want to ask prospective jurors.
  • For a formal trial, outline your opening statement.
  • Prepare all your evidence.

Prepare Your Evidence

One of the most important steps you can take when preparing to go to court is preparing your “evidence.” Evidence is information a party can present in court to prove their case.

Evidence can be in 2 main forms:

1. Witness testimony (people):

  • The party involved in the lawsuit;
  • Other people who have direct and relevant information about the case;
  • People who keep relevant records; or
  • Experts qualified to given an opinion about some aspect of the case.

Usually, any witnesses must be present in court for the hearing or trial.

2. Exhibits (things):

  • Documents or objects used to prove your case (or disprove the other side’s);
  • Photographs; or
  • Records: police records, medical records, bills, appraisals, school records, financial statements, etc.

To prepare your evidence:

  • Review all your evidence and sort it and organize it so that, even when you get nervous and rushed, you can find what you are looking for.
  • Make sure your witnesses are ready, not just for questions you will ask them but questions the other side may ask.
  • Outline questions to ask your witnesses. Make sure you know what your witnesses will say. And, in your outline, make notes about any documents or other evidence you need to ask your witnesses about.
  • Outline questions to ask the other side’s witnesses. Try to predict what they will say and be prepared with follow-up questions or documents to ask them about.
  • Research and consider likely evidence issues that may come up.

Researching the rules of evidence
There are rules of evidence that everyone must follow. These rules exist to make sure that the judge gets reliable, relevant, and accurate evidence to consider when making decisions about your case.

Some of the most important rules are:

  • Generally, people can only talk about what they know first-hand – what they themselves saw, heard, felt, smelled, or tasted. (There are some exceptions to this rule.)
  • The other side has the right to cross-examine anyone whose words (whether written or spoken) are being considered.
  • All testimony must be relevant information.

There are many laws that set rules for what evidence can be used in court. Together, these laws are called the California Evidence Code. You will have to follow these rules even if you are self-represented. You will not get any special treatment just because you are not a lawyer. And the judge and the court staff cannot help you prepare or present your case.

The following guidelines should always be followed in court:

  • Dress neatly and respectfully, as if you were going to a job interview.
  • Take all the papers that have been filed or served and any other documents that you will need to show to the judge.
  • Take blank paper and a pen.
  • Be on time. Allow extra time for traffic or other possible delays. (If you are delayed or unable to attend the hearing due to a car breakdown, sudden illness, or other emergency, contact the clerk for the court department where your hearing will take place on or before your hearing time.)
  • Turn off your cell phone or pager when you enter the courtroom.
  • When your case is called, walk to the table or podium in front of the judge and stand facing the judge.
  • Be prepared to state your name and your relationship to the case.
  • Speak clearly and loudly enough that the judge can hear you. Speak only when it is your turn.
  • When you speak to the judge, act respectfully and call him or her “your honor.” NEVER interrupt the judge.
  • Summarize your point of view.  Explain why the judge should approve (or not approve) each request you have made.
  • If you get nervous in court, look at your list. This will help you to speak to the judge.
  • If you are asking for court orders, make sure that the judge makes an order on EACH item you have asked for.
  • Do not depend on the judge to remember everything you have asked for. If something has been overlooked, tell the judge.
  • Answer all of the judge’s questions and stop talking immediately if the judge interrupts you.
  • If you do not understand something, say that you do not understand. Someone will try to explain it for you.
  • Do not leave the courtroom unsure of what the judge ordered. Make sure you understand the court order and also what you need to do when the hearing is over. You may have to prepare an order for the judge to sign. You may have to wait around for the judge to sign an order. Just ask if you are not sure.

from California Courts

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