Archive for Criminal Defense

Wrongfully convicted? There is a way to clear your record.

Wrongfully Convicted? There is a way to clear your record.

Once upon a time, if you were wrongfully convicted of a crime and you had already served your time, vacating the underlying conviction was limited and difficult. Thankfully, in 2003, the California Legislature noted the increased number of cases wherein it was proven that a defendant was wrongfully convicted based on false testimony of a police officer or DNA exoneration long after the defendant’s sentence had been served and, therefore, promulgated California Penal Code section 1473.6.

This statute provides the means for you to vacate a wrongful conviction. To qualify for this relief, you must have completely served your sentence and:

  • (1)  Newly discovered evidence of fraud by a government official that completely undermines the prosecution’s case, is conclusive, and points unerringly to his or her innocence.
  • (2)  Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.
  • (3)  Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment. Evidence of misconduct in other cases is not sufficient to warrant relief under this paragraph.

It is important to note that, once you have information tending to prove your innocence, you must act upon that within one year. Moreover, if there is actual evidence of misconduct by the police, you must act within 6 months to avail yourself of money damages. If this happened to you, don’t hesitate to contact Santa Rosa Criminal Defense attorney Gabriel Quinnan here at Quinnan Law. In a brief, free consultation, Mr. Quinnan can help determine your next steps.

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gun rights, second amendment law

Restoring your gun rights in California in an age of control

You’ve celebrated the recent passing of Proposition 64, which retroactively reduced your felony marijuana cultivation conviction to a simple misdemeanor. You petition the court for your reduction. Additionally, you ask for and are granted termination of probation and expungement. It was the only conviction on your record that made you ineligible to possess firearms. After obtaining the appropriate orders from the court, you immediately make plans to purchase a firearm, as is your constitutional right. You go to the gun store, pick out a nice varmint gun for the animals feasting on your chickens. You are denied.

The Department of Justice is doing everything it can to keep you in the prohibited persons category with regards to gun ownership, despite the state law that says otherwise and in the face of constitutional protections that create a fundamental right to bear arms. They are taking a page out of the federal government’s playbook by claiming that they have no resources to determine whether or not an applicant is truly eligible. In essence, you must wait indefinitely until, in their good time, they offer you due process. In many cases, it has amounted to years of waiting.

Lawsuits have been filed to end the delays, but, so far, the State of California has been unresponsive. Per usual, our system of government is less concerned with following the law than getting re-elected. Thus, the very people granted the authority to enforce the law will, once again, violate the law through intentional inaction. This is legislating via executive authority and violates the separation of powers doctrine.

What can be done? In my cases, I have taken the matter back to Superior Court and asked the judges to sign an order granting my client’s rights back. Next, I send the signed order along with the administrative appeal paperwork demanding they remove him/her from their list of prohibited persons. If they do nothing, I file suit and let DOJ explain why they refuse to act in accordance with the law.

If you have a gun rights issue, contact Santa Rosa criminal defense attorney Gabriel M. Quinnan to evaluate your case.

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Collective defense Santa Rosa Criminal Defense

You don’t need collective documents to assert a collective defense 

colorfuljudgeRecently, the requirement to have collective documents to assert a collective marijuana cultivation defense was eliminated. The ruling came on January 16, 2015, in People v. Orlosky, a criminal appeal filed in the Fourth District Court of Appeal.[i]

The court stated that collective documents may be a relevant factor for juries to evaluate. Such documents are not a mandatory requirement preventing a defendant from asserting a collective defense regarding “informal joint cultivation arrangements between two qualified patients who grow marijuana exclusively for their own medical use.”[ii]

The new rule applies to you if your circumstances are similar to those of the appellant. Robert Orlosky argued he and his roommate, who lived in a trailer on rural property, were growing marijuana together solely for medical purposes. Orlosky asserted his defense under the Compassionate Use Act (CUA). Law enforcement officers had argued that Orlosky and his roommate were growing more marijuana than was needed for their medical use.

Although the court has eliminated the requirement to have collective documents, possessing these documents may be helpful to you. If you want to review these documents with an attorney or have been charged with felony cultivation, contact Gabriel Quinnan. Quinnan is a skilled criminal defense attorney based in Santa Rosa, available to represent clients in Mendocino, Sonoma, Lake, Marin, and Napa counties. Call Gabriel Quinnan at (707) 540-2356 to discuss your case.

[i] People v. Orlosky, No. D064468, Court of Appeals of California, Fourth District, Division One. Filed January 16, 2015.

[ii] See People v. Orlosky.

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Vehicular Manslaughter Santa Rosa Criminal Defense

What is vehicular manslaughter?

colorfullawbookThe recent tragic accident that occurred at 3rd and B Streets in downtown Santa Rosa raises the question: what is vehicular manslaughter?

This offense is defined as the unlawful killing of a human being without malice, committed while driving a vehicle.[i] A driver must have demonstrated ordinary or gross negligence.[ii] Ordinary negligence means the driver failed to use reasonable care to prevent reasonably foreseeable harm to another person. Gross negligence means the driver acted recklessly, in a way that created a high risk of death or great bodily injury.

Vehicular manslaughter is a “wobbler,” and can be charged as a misdemeanor or felony. A driver’s criminal and driving history are relevant. A misdemeanor is punishable by a fine up to $1,000, informal probation, and/or a year in jail. A felony is punishable by a fine up to $10,000, formal probation, and/or two, four, or six years in prison.[iii]

At this point, police cannot determine which, if any, driver acted negligently. The cause of the crash remains under investigation.[iv]

In many cases such as the one above, facing a possible manslaughter charge can be a terrifying ordeal. If it is possible that you can be charged with vehicular manslaughter, call Santa Rosa criminal defense attorney Gabriel Quinnan. He has experience in handling such matters in both DMV and the criminal courts. Quinnan is a skilled practitioner available to represent you in Sonoma, Marin, Lake, Mendocino, and Napa counties. Call Gabriel Quinnan today at (707) 540-2356 to learn how he can defend you.

[i] California Penal Code (PC) § 192(c).

[ii] PC §§ 192(c)(1) and (2).

[iii] PC §§ 19 and 193.

[iv] The Press Democrat, January 28, 2015. Pedestrian killed in crash on sidewalk was longtime Santa Rosa resident. See:

http://www.pressdemocrat.com/news/3449571-181/pedestrian-killed-in-crash-on?page=0

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Heien police search seizure santa rosa criminal defense

U.S. Supreme Court Rules That Police Can Stop for “Reasonable Mistake of Law”

 

colorfuljudgeRecently, the U.S. Supreme Court ruled that a law enforcement officer can stop a vehicle based on a reasonable mistake of law. fn1. This ruling both defines and restricts your Fourth Amendment rights. A law enforcement officer can stop you on the street or while you are driving if he or she thinks you are breaking the law. This is true even if the officer is wrong. Such a stop does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The stop is defined as reasonable.

In the pertinent case, Heien v. North Carolina, the officer stopped a vehicle which appeared to have only one working brake light. The officer thought it was a violation of state law to drive a vehicle with one broken brake light. It was not. North Carolina only requires a vehicle to have one working brake light.

 Obviously, there are a lot of interesting issues presented in this ruling, not the least of which is the obvious: the police are able to legally detain you based on a mistake of law, however, a mistake of law is never a defense for those accused of a crime. Secondly, is this ruling opens the door for law enforcement officers to claim a “mistake”, which will undoubtedly be upheld by friendly (and so often former prosecutor) judges. But, to me, the most interesting implied admission by this court is that the law, generally, has simply become so complicated that even those tasked with enforcing it can’t keep it straight.

By law, we, the citizens (but no longer the police citizens), are deemed to know every single code, regulation, tax provision, etc. and are expected to be in full compliance. This is so even if the law is so confusing that law enforcement officers can’t figure it out. However, we are seeing the accelerated passage of laws every single legislative session by local, state and federal governments; sometimes by the hundreds. And yet, we are deemed to have perfect knowledge of every one of them. The Supreme Court is, for the very first time, recognizing this complexity, but only as it applies to the government, the very people who are in the best position to know what the law is. It’s hypocritical and further decays our ability to defend against unreasonable police intrusion.

Cases about reasonable mistakes of law often arise after an officer has stopped a person and conducted a search of the person’s body and clothing or vehicle. If an officer has stopped you, conducted a search, and found anything incriminating, call Gabriel Quinnan, an experienced criminal defense attorney.

Gabe Quinnan can tell you if the officer’s mistake of law was reasonable. He can represent you in trial or negotiate for an improved plea offer. Gabe Quinnan is available to represent you if you live in Sonoma, Marin, Mendocino, Napa, or Lake County. Call Gabe Quinnan at (707) 540-2356 today.

1. Heien v. North Carolina, 574 U.S. ___ (2014).

 

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Marijuana sales in native tribal land

Can Tribes Grow and Sell Marijuana?

bookiconOn December 11, 2014, the U.S. Department of Justice (DOJ) said Native American tribes can grow and sell marijuana on their lands. So far, only three tribes across the country, and one in California, has shown an interest in doing so. DOJ did not name the California tribe.

Marijuana remains illegal under federal law. Although DOJ has the authority to prosecute marijuana felonies on tribal lands, the agency stated generally it will not enforce federal marijuana laws on federally recognized tribes that choose to grow and sell marijuana. The tribes must meet eight federal guidelines, including not selling marijuana to minors and not transporting marijuana to areas that prohibit it.

The question is how federally recognized tribes in northern California will react to this change. It is also unknown how DOJ will implement the policy in the manner it stated: on a case by case basis. Reaction to the delay may be slow. Tribes will likely need to reach a consensus and implement their own policies.

DOJ’s change does not make it legal for those who are members of a tribe or not members of a tribe to grow marijuana on Native American lands and sell marijuana without the tribe’s permission. If you have been charged with marijuana possession or sale, call Gabe Quinnan at (707) 540-2356. Gabe Quinnan is an experienced criminal defense attorney who has represented clients facing marijuana-related charges in Mendocino, Sonoma, Lake, and Marin Counties. He help you reach the best possible resolution in your case.

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police body camera criminal defense Santa Rosa

Police body cameras: how they can change your case

courthouseiconAcross California, local law enforcement agencies are purchasing body cameras. Here’s some facts about these devices.

* Officers determine when and where to turn them on.
* The category of camera determines where the officer will wear the device: usually in the center of their chest or on their lapel.
* The resolution and quality of the camera determines what can be seen and heard.
* The law enforcement agency that buys the cameras will determine how long a recording will be kept and who should have access. Distributing video to individuals who are not charged with a crime or connected to a case could be seen as violating privacy rights.

The fact that a body camera is rolling can discourage an officer to use excessive force. Yet footage from a camera could hurt your case if you appear more violent or out of control than you remember.

On December 9, 2014, the Sonoma County Board of Supervisors approved a $1.2 million contract to outfit all county’s sheriff’s deputies with lapel cameras for 5 years. Current policies allow deputies to deactivate their cameras at any time they believe the use of the camera is unnecessary.

If you need a skilled criminal defense attorney, call Gabe Quinnan at (707) 540-2356. Gabe Quinnan is an experienced and determined criminal lawyer who is able to analyze the footage from a police body camera and determine whether it can help your case. Gabe Quinnan is available to represent you if you live Sonoma, Lake, Mendocino, or Marin County.

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Prop 47 Santa Rosa Lawyer Reduction

See If Your Felony Can Be Reduced to a Misdemeanor and You Can Get Out of Prison:
Recent Changes Because of Proposition 47

colorfulhandcuffsIf you were recently convicted of a property crime for $950 or less or possession of an illegal drug for personal use, think of calling Gabriel Quinnan, skilled criminal defense attorney. He can assess your case to help you determine whether you are eligible to have a felony offense downgraded to a misdemeanor. He can also argue for your release from jail or prison.

In early November, California voters said yes to Proposition 47. This was a retroactive ballot measure meant to lower the state’s prison costs. The law covers shoplifting, theft, writing bad checks, forgery, and possession of stolen goods. Individuals without prior convictions for murder, rape, certain sex offenses, or certain gun crimes are eligible for sentence reduction and prison release.

A felony conviction negatively affects your chances for employment and housing. If you do not pay off a debt related to a felony conviction, this can negatively affect your credit score. Public defender’s offices throughout the state have been overwhelmed with Prop. 47-related requests. Your petition for relief may move faster through the criminal justice system if you hire a private attorney to research your background and assist with your paperwork.

Gabriel Quinnan is available to represent you in Mendocino, Lake, Sonoma, and Marin counties. He is a thorough, patient, and competent criminal law attorney who has defended individuals in cases ranging from burglary and robbery to drug possession and sales. Call at him in Santa Rosa, California to learn more about how he can help you.

 

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criminal record expungements

Clearing Your Criminal Record

unnamedOne of the least-used provisions in California law is the criminal record expungement laws. It’s too bad because getting an expungement can be relatively easy to do. And, there are certain benefits to getting one.

Generally speaking, most misdemeanor and felony offenses can be expunged, with certain exceptions. Those exceptions include certain sex offenses and those crimes that resulted in a sentence to state prison. Expungement is even available for those sentenced to serve a prison sentence in county jail under the realignment provisions pursuant to Penal Code section 1170(h)(c)(5).

Although not a complete whitewash of your record, an expungement does have certain benefits.  The most important is being able to tell others, especially potential employers, that you do not have a conviction of a crime on your record.  Employers would be prohibited from discriminating against you solely because of your expunged record. Another benefit is obtaining a professional license. In my practice, I have seen the impact a criminal conviction has on a person’s ability to obtain and keep a license.  Those rules are becoming more strict every single year. While an expungement will not guarantee you a professional license, it will help immeasurably.

When you consider petitioning for an expungement, you should consult with an experienced attorney to assist you. During that meeting, be prepared to provide all documents related to that conviction. You are in the best position to get your petition granted if you have successfully completed all terms and conditions of your probation, including pay all fines, fees and completed all jail terms and/or community work service hours. Moreover, you should have not committed any additional offenses since your original conviction. It is also helpful if you have a good reason for needing the expungement, such as seeking employment.

Keep in mind; even if you had violations of probation or subsequent convictions, the court may still grant your petition. Except that the burden will be significantly greater. You will likely need to show a significant period of time in which you are crime free. I would also want to see letters from members of the community, such as an employer, a clergyman, or other community leaders to support your petition. Even then, it will take a skilled advocate to expunge your prior record.

If you have been convicted of a felony “wobbler”, or a felony capable of being charged as either a misdemeanor or felony, you are also entitled to ask for a post conviction reduction to a misdemeanor and then an expungement. A felony conviction carries with it tremendous consequences, and will close many doors and freedoms in one’s life. If you can get this relief, it is well worth your time and money to make it happen.

In my practice, I have handled literally hundreds of criminal expungements. If you are thinking about having this done, please contact me immediately and we can discuss your options.

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Large law firm advantage?

Large Criminal Defense Firm Advantage?

unnamedWhile searching for your criminal defense attorney, you will have a number of questions, such as: is the attorney qualified? Is the attorney aggressive?  Will the attorney keep you informed about your case?  One that you will rarely encounter is whether or not you should choose a large firm or a small firm.  The fact is that most criminal defense firms typically have only one or two lawyers.  This is, perhaps, a result of the intensely independent nature of a criminal defense attorney.  However occasionally, law firms spring forth boasting of a larger number of attorneys.

There can be certain advantages of a large criminal defense firm.  The first is coverage.  In a large firm, if one attorney is in trial, other attorneys can fill in for the absent attorney.  Ideally, by virtue of working in the same office, the substitute attorney will have some familiarity with the case and provide adequate counsel without the need for delay.  The second advantage is, theoretically, access to the minds of other attorneys.  No attorney knows everything, thus having multiple perspectives can be extremely helpful when evaluating your case.  The third advantage is that of resources.  Because there are multiple attorneys and, as a result, multiple incomes, money is pooled to share in cheaper and more advanced resources, such as bulk paper, advertising materials and copy machines.

However, in practice, large criminal defense firms seldom take advantage of these inherent advantages.  As a former member of two large firms, my experience has proven to me that large firms tend to be disorganized, cumbersome money holes.  Big firms mean big expenses, especially if they need a building to house other attorneys.  Big firms bank on impressing you, the potential client, with expensive furniture and other vanity items.  These things cost money and that money pressure requires a huge volume of cases.  To get those cases, large firms engage in massive advertising campaigns, which also costs a pretty penny.

The problem with the quest for ever-increasing cases is that a huge case volume undermines the whole point of having multiple attorneys.  Rarely will one attorney have any idea what other attorneys are doing in their cases.  Rarely do attorneys have the time to sit around and casually discuss all the cases.  Inevitably, the member attorneys will develop a huge motive to get their clients to plea as soon as possible, regardless of the merits of their cases.  The quicker they can get rid of a case, the quicker they can resume their attempts to get more cases.  More importantly, there is the high likelihood that your case will be forgotten and they will not inform you of your case’s progress.  You can’t make intelligent decisions about your case if they don’t tell you what’s going on.

The final problem with large criminal law firms is management.  You will rarely see firm partner(s) actually handling cases, except perhaps for the media-grabbing cases.  The partner(s) focus is on firm management, i.e.: getting more cases, not making sure your case is handled properly.  You think you’re hiring a large firm, but what you’re really hiring is a single, overworked and underpaid attorney.

A small firm, by contrast, usually has all the advantages of a large firm without all the overhead and administrative costs.  Fewer costs mean no pressure to settle your case or to increase case volume to unmanageable levels.  And a reputable attorney in the legal community will associate with plenty of other attorneys in the community to gain more than one perspective in a case.  In my firm, I am the sole attorney.  And I like it like that.  When I need a second set of eyes or I have need for coverage, there are a number of other attorneys in the community I can call on.  Moreover, resources are shared among the other, independent attorneys in my office, negating the large firm advantage.  Most importantly, I am the attorney on your case and solely responsible for its outcome, nobody else.  You won’t interview with me and get dumped on another nameless, faceless attorney in the office.

The surest way to determine whether or not you will have quality representation is to ask the prospective attorney when was the last time they defended a case at trial and how serious was the case.  Ask them how many trials they’ve defended criminal defendants in your community.  Ask other attorneys in the area about that firm’s reputation in the community.  If you like what they’re telling you, ask the attorney you interview with whether or not he/she is going to be the actual attorney working on your case.  If it looks like your case will be lost in the large firm large case volume, you’re probably right.

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