Jul 26, 2021
| By Kerry Armstrong
| Read Time: 2 minutes
In a criminal law context, “dismissed without prejudice” means that the prosecutor can refile your case at a later date. By contrast, in the case of a “dismissal with prejudice,” the case is over and you walk free. Certain rules determine whether a case is dismissed with or without prejudice. What Does “Dismissed Without Prejudice” Mean? A California criminal case can be dismissed without prejudice, meaning that it can be filed again later. Some of the most common reasons for dismissing a case without prejudice include: Lack of jurisdiction: The court does not have the power to decide your case. The crime might have occurred outside of the court’s jurisdiction, for example. Inappropriate venue: For various reasons, it would be better for another court to try the case. Improper service of process: The court did not properly notify the defendant of the proceedings against them. In a criminal law dismissal without prejudice, it is typically (but not always) the defendant’s lawyer who initiates the dismissal process by filing a motion to dismiss. When either side files a motion to dismiss, the other side has the opportunity to respond. When the defendant’s motion triggers a dismissal, the dismissal is involuntary. When the prosecution’s motion triggers a dismissal, the dismissal is voluntary. Judges normally do not dismiss cases on their own initiative. What Does “Dismissal with Prejudice” Mean? Dismissal with prejudice is a legal act that usually terminates a civil or criminal case. If the judge dismisses your criminal case with prejudice, the charges are dropped and you go free. In almost every situation, no court can try you again for the same course of conduct, because that would violate the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution. Double Jeopardy and Dismissal With Prejudice “Double jeopardy” is forbidden by the U.S. Constitution, which states, “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . .” This clause means (subject to narrow exceptions) that you cannot be tried twice for the same criminal charge. The double jeopardy clause determines whether certain actions will cause a case to be dismissed with or without prejudice. A dismissal of a criminal case must be with prejudice if: The court has already empaneled a jury; The trial is a bench trial and the court has already sworn in the first witness; The court acquits the defendant; A court acquits the defendant of a lesser included offense (a court cannot try a defendant for first-degree murder after that court or another court acquits the defendant of second-degree murder for the same killing, for example); or A court overturns the defendant’s conviction for a lesser included offense. If one court convicts the defendant of a crime and a higher court overturns the conviction, a court can retry the defendant. Thus, an acquittal is final but the reversal of a conviction is not necessarily final. We are Not Afraid to Fight for Your Freedom The San Diego County criminal justice system is a jungle. Its guiding principles are competition and conflict, and you will be at a severe disadvantage unless you retain an experienced criminal defense lawyer to represent you. Contact the Law Offices of Kerry L. Armstrong, APLC, by calling 619-900-6902 or by contacting us online to schedule a free, confidential consultation.
Jul 26, 2021
| By Kerry Armstrong
| Read Time: 3 minutes
Can a felon own a gun in California? The short answer is no. California has instituted some of the strictest gun control laws in the country, and conviction of any felony and certain misdemeanors will render you ineligible to own or possess a gun in California. Under California Penal Code section 29800, you commit a felony by merely owning a gun or by purchasing, receiving, or possessing one after having a felony conviction. You cannot even have a gun under your custody or control without breaking California law if you are a felon. How Long Before a Convicted Felon Can Own a Gun in California? Restoring gun rights in California is not easy, and often it is not even possible. Theoretically, if you are convicted of any felony, then you are subject to a lifetime ban. Conviction of certain misdemeanors also results in a lifetime ban, while conviction of other misdemeanors results in a ban of only ten years. Nevertheless, there are two loopholes that will allow you to recover your gun rights under certain very limited circumstances. Loophole #1: Converting a “Wobbler” Offense to a Misdemeanor After the Fact A “wobbler” offense is an offense that can be charged as either a misdemeanor or as a felony, depending on the circumstances. The receipt of stolen property is an example of an offense that is considered a “wobbler” offense in California, depending on the value of the stolen property that you received. One way to regain your gun rights in California is to convert a “wobbler” offense from a felony to a misdemeanor. Under certain circumstances it is possible to do this after you have already been convicted of a felony, so you will no longer be a convicted felon. If you do this, the extent of your loss of gun rights will depend on the penalties for that particular misdemeanor. In other words, you might become eligible to own a gun again. Loophole #2: Seek a Pardon from the Governor of California A pardon relieves you from any further penalty for a crime. If you are in prison, for example, you can walk free with a pardon. A pardon does not exonerate you from the crime. It only relieves you of its consequences. Remember, the Governor of California can only pardon you for a state law offense, not for a federal offense. Likewise, only the governor is qualified to pardon you for a state law offense. The governor enjoys nearly 100 percent discretion in the decision of whether to issue you a pardon. In most cases, you must have lived in California for at least seven years. You must also have been free of involvement in any criminal activity for at least 10 years. The governor can deny your pardon request for almost any reason, or for no reason at all. If you live in California: Petition the Superior Court for a pardon If you live in California, you must undergo a two-step process: Submit a petition to a California Superior Court for a California certificate of rehabilitation. This is not a pardon, but you can use it to qualify for a pardon. If the Superior Court grants your petition, your California certificate of rehabilitation will become a petition for a pardon from the governor. If you live outside of California: Apply directly to the Governor for a pardon If you live outside of California, you cannot seek a pardon by petitioning a Superior Court for a California certificate of rehabilitation. Instead, you must apply directly to the Governor’s Office. When You Cannot Recover Your Gun Rights No legal loophole can restore your right to own a gun in California if you committed a felony involving: domestic violence, or the use of a “dangerous weapon” (not necessarily a gun). Check the laws of other states to see whether you can possess a gun outside of California. What Happens If the California Police Catch You with a Gun If you cannot restore your legal right to own a firearm, stay away from guns. If you don’t, the penalties can be severe. California can incarcerate you in prison for up to three years and fine you up to $10,000 for the offense. Other states might apply even more serious penalties. We Are Not Afraid to Fight for Your Rights The California criminal justice system is complex, confusing, and overwhelming. Since the justice system is adversarial in nature, you can expect a brutally competitive environment. Without an experienced criminal lawyer by your side, you will be at a severe disadvantage. Contact the Law Offices of Kerry L. Armstrong, APLC, by calling 619-900-6902 or by contacting us online to schedule a free, confidential consultation.
Jul 26, 2021
| By Kerry Armstrong
| Read Time: 3 minutes
If the police arrest you for receiving stolen property, you might do time in prison. Fortunately, several defenses exist where you can win an acquittal or even a dismissal. “Receiving stolen property” is a particularly dangerous crime because under certain circumstances you can be charged with it for receiving stolen property unknowingly. Examining California Penal Code Section 496: Receiving Stolen Property California Penal Code section 496 criminalizes the receipt of stolen property. The prosecution must prove each of these three separate legal elements to convict: You purchased, received, sold, helped to sell, concealed, or withheld property that was stolen from someone; You knew that someone stole the property at the time you obtained it; and You knew the property was in your possession or presence (nobody slipped it into your pocket, for example). Since receiving stolen property is a crime, the prosecution must prove each of these three elements “beyond a reasonable doubt.” And please note that a judge or jury can conclude that you knew the property was stolen even if nobody told you directly. What Makes Property “Stolen”? For the purposes of California Penal Code section 496, property is “stolen” if someone took it by theft, robbery, or extortion. The thief may have taken the property by force, threat of force, or deception—it does not matter. If person A takes person B’s property in a way that would prompt person B to call the police, the property in question probably qualifies as “stolen.” How Much You Have to Know to Be Guilty Defending yourself against a charge of receiving stolen property by claiming that “I am incredibly naive” is dangerous at best. If circumstances indicate that any reasonably intelligent person would realize that someone stole the property and then gave or sold it to you, a judge or jury is likely to convict you. For instance, if you purchase fine jewelry from a person outside of a gas station restroom, a jury can assume you knew it was stolen. So be careful. Business Owners and the Due Diligence Requirement Criminal liability for receiving stolen property applies more strictly to businesses that collect property than it does to ordinary citizens. For instance, pawn shops and used book store owners have the obligation to investigate suspicious transactions. The law can hold them criminally liable for failing to do so. Is Receiving Stolen Property a Felony? In California, when a person receives stolen property the crime is classified as a “wobbler” offense. This means that the prosecution can charge you with either a felony or misdemeanor, depending on the circumstances. Receiving stolen property is a misdemeanor if the aggregate value is no more than $950. In borderline cases, an experienced attorney can reduce your charge from a felony to a misdemeanor by determining the property’s aggregate value. If you received stolen property valued at over $950, California can charge you with either a misdemeanor or felony. The facts and circumstances of the case and your criminal history will determine whether the prosecution charges you with a misdemeanor or a felony. The maximum period of incarceration for a felony charge is three years. Defenses Following are some of the most common defenses to a charge of knowingly receiving stolen property: Lack of knowledge—One of the most common defenses is that you did not know the property was stolen. Innocent intent—This applies if you knew the property was stolen, but you intended to return it to its rightful owner or the police immediately after obtaining it. Lack of legal possession—This defense applies if you did not realize the property was in your possession (e.g., your roommate put it in your room). Intoxication—Intoxication is a defense only if your intoxication prevented you from understanding the nature and consequences of your actions. Theft charge—If the prosecutor has already charged you with theft for stealing the property, they cannot then also charge you with receiving stolen property for the same item. Some of the foregoing defenses can be very difficult to accomplish without the aid of a skilled criminal defense attorney. It Is Time to Start Fighting Back A California criminal prosecution is a war, and it is no place for a “nice guy.” We know how to fight that war because we have done so successfully hundreds of times. Call the Law Offices of Kerry L. Armstrong, APLC, at 619-900-6902 or contact us online to schedule a free, confidential, and no-obligation consultation.
