Criminal - Andre S. Boghosian
 

Criminal

Citizen’s Arrest in California

Who Can Make a Citizen’s Arrest? Is it Legal?

“There are two types of people: those who are in jail, and those who should be in jail.” Marcel Achard

The United States is a free country and no one is arrested for expressing his political views, even if they are directed against the foreign and domestic policies of the federal government. However, it is much easier to get arrested in the U.S. than in any other less civilized country. Not everyone knows that U.S. laws allows a so-called “citizen’s arrest” and that it can be performed not only by a law enforcement officer, but by an ordinary citizen and even a person without a citizenship. The practice of such permission to arrest is rooted in the English medieval law. It allows anyone who lives in the country, regardless of their profession and status, to make the arrest of a person who may be involved in the crime.

In every U.S. state, criminal laws are applied and interpreted in different ways, but most states allow, with reservations, any of its citizens to make, if necessary, a “citizen’s arrest” of a person who has committed or is attempting to commit an offense. With the exception of North Carolina, the law allows anyone who witnesses an offense to arrest a suspect. The law also states that if the police are unable to perform arrest, they can resort to civilian assistance in an attempt to arrest or detain a suspect who is in process of committing a crime.

North Carolina allows people to perform a citizen’s arrest, with the right to make an arrest; however, they are allowed to make temporary detention of another person, if necessary. This also applies to police officers who are located outside the territory of their legal jurisdiction.

Article 837 of the Criminal Law of California says that an individual may make a citizen’s arrest, if a criminal offense is being committed in his or her presence or if the offense has been committed and there is good reason to believe that the person arrested committed the crime.

Further, the law allows the person making the arrest to ask strangers for help in the process of making the arrest. The person making the arrest must warn the person being arrested of the reason for which he is being placed under citizen’s arrest, except in some cases where the crime is committed and the perpetrator tries to escape from the scene of the offense. However, the person conducting the arrest must inform the suspect of the reason for his arrest upon request.

The law goes far beyond what one might imagine, and allows citizens to break windows and doors of the houses where they believe a civilian can apprehend an offender, if the arresting citizen has a good reason to believe that this is where the offender is hiding from justice. But even here the law stipulates that before a citizen begins to break into other people’s windows and doors, he or she should explained the reason for the intrusion.

The arresting person has the right to confiscate all weapons found on the offender, and is obligated to hand over all seized weapons to the authorities as soon as possible.

If the citizen’s arrest is successfully completed, the citizen must promptly deliver the arrested person to the nearest police station or to the authorities ASAP.

The citizen’s arrest is legally exempt from any civil or criminal liability of a possible counter-claim or prosecution. In some cases, even if the arrest was not warranted, but the citizen had a good reason to assume that the arrest of the suspect was motivated by the need to stop any possibility of the offense, the arrest is still exempt from prosecution.

Many will perhaps be pleased to know that in the state of Oregon, any civilian can cite a police offer for violating traffic laws.

What advice can be given to someone who is arrested by a civilian or a law enforcement officer?

The best thing to do is to not resist arrest, even if it is unwarranted, and not to try to justify yourself or your actions. You will be taken to the nearest police station, where you will be provided with a list of your personal belongings, have your photo and fingerprints taken. You will then be asked to specify a person who could be notified about your arrest. Further, the arrestee is asked if he wants to call his attorney or a public defender to be present at his interrogation. If the arrestee confesses to commission of the crime during the interrogation, then there is little an attorney can do to defend him or her during the trial.

After about an eight hour wait, the first interrogation is usually done by the police officer who conducted the arrest. During the interrogation, the arrestee is warned that all that is said can be used in trial against him.

After the interrogation, the police officer will transfer the case to the prosecutor to decide whether it is worth starting criminal prosecution or not. If the prosecutor decides to move forward with the case, then the arrestee will have to wait for his or her first appearance in court, where a judge will decide only one question whether temporarily bail will be set or not.

Anyway, in case of arrest do not panic and do not resist. As Friedrich Dürrenmatt once said, anyone can be arrested without any explanation and sentenced for at least ten years in jail and somewhere deep in he will know what for…

What is Expungement?

How to “Clear Record” in California?

I am unemployed and am looking for a job. I have a criminal conviction. I am afraid that a potential employer may ask me about my criminal history or check my criminal background, which will result in the employer refusing to hire me. Is there anything that I can do?

The answer to your question is “perhaps yes”. In the United States there is a way to seal a conviction record. It is called an “Expungement”.

What is Expungement?

In the common law legal system, an Expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state or Federal repositories. If successful, the records are said to be “expunged”.

Expungement of criminal records (either arrest or conviction) is of critical concern to anyone with a prior conviction, or contemplating a guilty or no contest plea to a current offense. Expungement is a term that means different things in different jurisdictions; generally, it refers to the cleansing of one’s criminal record, or the sealing and destruction of arrest and/or conviction information.

Because the law and types of relief vary from state to state, it is important to consult with a lawyer in the state where the conviction occurred. Expungement, when properly done, can remove hurdles to gainful employment, professional licenses, and bring closure and emotional relief. Therefore, it is essential that one who is interested in an Expungement contact a lawyer that understands the types of relief available, and how to obtain them.

Expungement can take many forms. The relief available will depend on the type of conviction (misdemeanor, felony, or “wobbler”), the type of sentence received (probation with or without jail time, state prison), the age of the offender (juvenile or adult), and whether a claim for factual innocence can be made out.

California criminal offenses are defined by the type of punishment that can be imposed. Misdemeanors are offenses that are punishable by a fine, and/or up to one year in county jail. Felonies are punishable by a fine, and by custody in state prison. Wobblers are cases that can be punished by either up to one year in county jail, or by imprisonment in state prison.

The most common type of expungement relief available in California is authorized by California Penal Code Section 1203.4. This section provides, in pertinent part, that:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any new offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.

If an expungement is granted by the court, for some purposes, not all, you can treat your past conviction as it has never happened. For example on you application for employment, school or a professional license you would not need to mention the expunged conviction. However, the rules and eligibility for expungement vary from conviction to conviction and from state to state. Therefore, if you are interested to expunge a past conviction, my advice to you is to see an attorney. What you need to know is that you need to apply for an expungement in writing, an expungement does not happen automatically after a period of years. Also, even if you expunge a prior conviction, it could still be used to enhance the sentence of a future conviction. Finally, not all convictions are eligible for expungement.

It is very important to know that a generic expungement would seldom help you with your immigration matters. What this means is that if you are placed on deportation proceeding because of a criminal conviction, a simple expungement of your conviction would often not be a cure to your immigration problems. However, there may be other ways to dismiss or modify your past conviction in order to solve your immigration problems. Again, in this case you would need an experienced attorney to first analyze your situation and then, if possible and effective, take the necessary steps to solve your problem.

Our criminal defense lawyer can help you expunge criminal records throughout California, including Los Angeles, San Bernardino, Riverside, Ventura, Orange County and the San Francisco Bay Area. Contact us for a free consultation.

If you are arrested.

What to do in case of arrest?

How to beat criminal charges and convictions? How to defend a case? What to do if you are arrested for driving under influence (DUI)? Find out what to do when you are stopped or detained by the police. Why it is not a good idea to talk to a police officer about you case.

Criminal Charges

A criminal charge could not only lead to your incarceration and deprive you of your freedom but it would certainly damage your relationship with your loved ones and affect t yours and their future for years to come.A criminal conviction would also affect your reputation, your immigration status, your ability to get a job, to receive a professional license or to qualify for a loan.
We have got experience, knowledge and a strong desire to fight for your rights. So come and talk to us. Our doors are open and you are welcome to our office.
Remember, you are not guilty until proven otherwise. In this country, regardless of your race, age, gender and color, you have the right to access and examine the evidence that is presented against you, the right to cross examine the witnesses, the right to present evidence on your behalf, the right to testify or to remain silent and most importantly the right to hire a competent lawyer.
A competent attorney is one that knows the law, knows the courtroom, has experience, is dependable, is respected and mostly is willing to put up a real fight for your rights.
Whether we settle your case or take it to trial, rest assures that we will do everything possible to reach the best outcome under the circumstances. Because we know that your freedom and our professional reputation is at stake.

Law Offices of Andre Boghosian

Criminal Defense Attorneys

Misdemeanors – Felonies

818-507-8029

call for free consultation

Criminal Immigration: The Consequences of Criminal Convictions on Non-US Citizens

The Immigration and Nationality act can and does create severe consequences for non-US citizens who have criminal convictions. An “alien” is defined as “any person, not a citizen or national of theUnited States”.

 

Three categories of aliens:

  • Lawful permanent residents (aka green card holders)
  • Non-immigrants, legally in theUSin a temporary capacity (visitors, students, non-immigrant workers)
  • Illegal aliens: individuals who entered the country illegally or who entered the country legally and have remained beyond their authorized stay

Definition of Criminal Conviction for Immigration Purposes

The USCIS defines a conviction as a formal judgment of guilt. If a judgment is withheld, where there is some type of plea, and/or admission of facts warranting guilt and the imposition of some type of penalty.

Any type of criminal adjudication, such as Holmes Youthful Training Act, rehabilitative drug dispositions like 7211, domestic violence please under advisement, and any other type of criminal plea where a judgment of conviction is withheld, is considered to be a conviction for immigration purposes, and can be used by the USCIS as grounds for deportation.

However, there is an exception to this rule, involving 17-year-old persons who receive Youthful Training Status, as these crimes have been equated to being the equivalent of a federal juvenile delinquent status, and as such, may not necessarily be convictions for immigration purposes. Specifically, the Board of Immigration Appeals in the case of In Re: Miguel Devision Charles ruled that if a state youthful status conviction is comparable to the Federal Juvenile Delinquency Act (FJDA), then the alien was not convinced of a crime and is not subject to deportation as the FJDA applies to individuals under 18 years of age. Only those aliens 17 years of age and under would be protected.

Deportable vs. Inadmissible Crimes

Under the INA, criminal convictions may make an alien ineligible for admission into the United States. Specifically, convictions that are covered under this section apply to aliens who are not permanent residents, such as non-immigrant aliens, illegal aliens as noted above or individuals outside the country. These grounds, as covered in the statute will make it difficult, if not impossible, for the aliens noted above to obtain permanent residency in the United States.

Criminal conviction can make aliens deportable or inadmissible. Deportable aliens are those individuals who the government desires to remove from the US. Deportation, now referred to as removal, involves the act of placing the alien in proceeding before an immigration judge. Inadmissible aliens are aliens who are attempting to obtain entry into the United Statesor aliens who are in theUnited States and are seeking permanent resident status.

It is not unusual, however, to see an alien who has been admitted in some sort of non-immigrant category, or illegal aliens, to be placed in deportation/removal proceedings.

These aliens are both inadmissible as well as deportable. There are, however, various differences between these categories. Consideration by criminal practitioners in resolving their criminal cases can affect the future rights of these aliens. Specifically, crimes that subject an alien to deportation may not cause those aliens to be inadmissible.

A prime example of these differences involves the treatment of domestic violence convictions. Domestic violence is a deportable offense.  However, it is not an offense that makes an individual ineligible for admission into the United States. In other words a person convicted of domestic violence might be deportable or removable from theUnited States. However, it would be possible to be readmitted to the United Statesif one is otherwise eligible.

An example of this is a permanent resident alien married to a US citizen. If the alien is not entitled to relief from deportation/removal, the US citizen can reapply to have the alien admitted as a permanent resident.

The two categories of crimes listed above provide for a variety of crimes that can make an alien inadmissible and/or deportable from theUnited States. While the groups are not identical, there are some similarities. The crimes listed below are the primary crimes that are used by USCIS and affect the rights of aliens.

Moral Turpitude Crimes

Crimes involving moral turpitude where the penalty exceeds one year or more can make an alien deportable or inadmissible. More turpitude, under immigration law, has been defined by case law and is extremely broad.

Crimes involving moral turpitude:

  • Frauds
  • Thefts
  • Burglaries
  • Robberies
  • Murder
  • Manslaughter
  • Income tax evasion
  • Drunk driving
  • Assaults with weapons
  • Domestic violence
  • Conspiracy related crimes
  • Drug trafficking

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