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How Can You Get Probation In Your Criminal Case?

If you are sentenced to jail time, your entire life could change. Not only will you lose your liberty you could also lose your job or career. However, you may be able to stay out of jail by seeking probation.

If you are granted probation, you could live at your home, keep your job and not have to deal with all of the adverse consequences that occur when you sit in jail.

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So, how can an experienced criminal defense attorney help you receive probation as part of your sentence or prior to your case being heard?

California courts are given wide discretion when it comes to sentencing. The judge will take into account a number of factors, including the severity of the crime for which you were convicted and your prior criminal history (if any). Are you a first time offender?  

The court is more likely to be lenient with your sentence if:

-Your crime was not a serious one that involved death or serious bodily injury to another person, and

-You have no history of prior criminal convictions

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There are a number of ways to get probation as part of your sentence. First, consult with an experienced and skillful criminal defense attorney. Your lawyer will review your case, assess the pertinent factors, and develop a recommendation that persuades the court to grant you a term of probation in lieu of jail.

Your attorney can then take a few different approaches. He or she can approach the prosecutor and determine whether a plea agreement can be made to keep you out of jail. In some cases, prosecutors are open to probation as part of a “plea deal” because it avoids the necessity of having to try the case.

As part of a plea bargain, you will be required to plead guilty or no contest to some criminal charge against you. This is one way your lawyer can help you secure probation instead of going to jail.

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Another tactic is to make the case for probation to the judge at your sentencing. At sentencing, your attorney can argue that your punishment should only be in the form of probation and not jail. Your lawyer can call witnesses to testify about your good character and explain any mitigating factors that will support probation as an appropriate punishment in your case.

Contact the Criminal Defense Attorneys at Fiumara & Milligan Law Today

If you would prefer probation over JAIL time in your case, you should contact a skilled and experienced criminal defense attorney immediately. At Fiumara & Milligan Law, our knowledgeable criminal defense lawyers have been helping satisfied clients obtain probation in criminal cases for more than 25 years.

With offices in both Sonoma and Marin Counties, there is an experienced criminal defense attorney conveniently available to help you no matter where you are located.

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Contact our offices today at 707-571-8600 or 415-492-4507 for a free consultation and find out how we can help YOU!

The Right Attorney Makes All The Difference!

For more info on probation violations in Sonoma or Marin Counties, CLICK HERE


Extortion – California Penal Code sections 518, 519, 520

Extortion – California Penal Code sections 518, 519, 520

In California, the crime of extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

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Defining “Fear”:

Extortion may be committed by the application of force, such as, I won’t stop hitting you until you give me the password to your debit card, but it can also be committed by forcing someone to do the same thing out of fear. The Penal Code states that fear, such as will constitute extortion, may be induced by the threat of the following:

  1. To do an unlawful injury to the person or property of the individual threatened or of a third person. An example is, I will hit you if you don’t give me your money.
  2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. An example is, I will accuse you of theft if you don’ give me your money.
  3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. An example is, I will say you got so drunk last night that you had sex with multiple partners if you don’t give me money.
  4. To expose a secret affecting him, her, or them. An example is, I will tell people you about how your cheated on your spouse unless you pay me money.
  5. To report his, her, or their immigration status or suspected immigration status. An example would be, I will tell INS you are an illegal immigrant unless you pay me money.

Property:

The term, “property,” basically means anything of value, such as, but not limited to, money, a signature on a document, a deed to a house, a promise to do some official act, such as a pardon or a dismissal of a case, valuable photographs, a contract, etc.

Punishment

It is a felony to commit the crime of extortion and the court may impose a 2, 3, or 4 year state prison sentence as punishment.  

If the extortion was done by an official in the government, then then the crime may be charged as a misdemeanor.

If the extortion is done against an elder person, then that fact will be used by the judge to consider imposing the 4 year prison sentence, rather than the 2 or 3 years term.

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How does the prosecutor prove the crime of extortion?

To prove the crime of extortion, the prosecutor must prove that:

  1. The defendant used force against another or threatened to do one or more of the following:
    1. unlawfully injure,
    2. threatened to accuse the person or another person of a crime, or
    3. threatened to expose a secret about another person,
  2. When making the threat or using force, the defendant intended to use that fear or force to obtain the other person’s consent to give the defendant money or property or to do an official act;
  3. As a result of the threat or use of force, the other person consented to give the defendant money or property or to do an official act;

AND

  1. As a result of the threat or use of force, the other person then gave the defendant money or property or did an official act.

Legal Defenses:

Threat or use of force not the reason the person consented. The victim in an extortion must have consented to do some act as a result of the defendant’s threat or use of force. For instance, it would be a crime of extortion if the female victim paid money to prevent the defendant from revealing nude photos of her. However, it would not be extortion if the victim paid the money for some other reason, such as to pay a lawful debt.

The defendant had a lawful right to make the threat. If the threat was lawful, then there is no extortion. For instance, a threat to file a cause of action for personal injury unless the alleged victim settled the claim outside of court is not extortion. In fact, this scenario is common when attorney’s make personal injury claims against insurance companies.

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The threat or use of force was not accompanied by the defendant making a demand for something of value. It would be extortion to tell someone that you will report that they stole an apple unless they give you two dollars, but it would not be a crime if only the threat to report the crime was made. An example would be if Dave stole money out of the cash register. Steve saw him do it and immediately said, “I’m going to tell the boss.” In response, Dave says, “I’ll give you $100 if you don’t say anything,” and Steve agrees. This is not extortion, though Steve may be guilty of other crimes, such as conspiracy and/or misprision of a felony (helping to cover up the crime.)

There was no use of force or threat accompanying the demand for something of value. If the demand for something of value was not accompanied by the use of force or threat or there is no connection between the two, then there is not crime of extortion. An example of this situation is when Robert tells Sarah that he will release nude photographs of her. He threatens her with this on April 2nd. Two weeks later he calls her and says, you owe me $200. The prosecutor will have to prove that the demand for money was in connection with the threat to release the nude photos or Robert will not be found guilty of extortion.

Being Represented by a Knowledgeable Attorney is Crucial:

If you are charged with this crime it is crucial that you retain the services of a knowledgeable attorney as soon as possible. Extortion is a serious crime that involves elements that can lead to prison, deportation, or both, and you need competent representation and advice.

Contact us:

We have been successfully defending clients facing all types of criminal charges in Sonoma and Marin Counties, since 1992.

The 100 Trial Lawyers Association has recognized us as one of the best criminal defense attorneys in the country!

How a Criminal Defense Lawyer Can Help Me Win My Theft Charges Case

Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.

Don’t bargain with your freedom! The right attorney makes all the difference between your freedom and incarceration!


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California Legislative Information

Despite the devastating news coming from the North Bay where we practice law–the loss of life and the horrendous destruction of thousand of homes and businesses, here is some good news on the Juvenile Justice front. Governor Brown just signed some very much needed progressive legislation, see below:

http://northbaylegaldefense.com/juvenile-crimes

SACRAMENTO – Governor Edmund G. Brown Jr. today signed legislation to improve California’s criminal and juvenile justice systems, restore the power of judges to impose criminal sentences and reduce recidivism through increased rehabilitation.

The Governor signed the following bills:

• AB 529 (Stone) requires the sealing of juvenile records when a petition is dismissed. 
• AB 1308 (Stone) expands the youth offender parole process for persons sentenced to lengthy prison terms for crimes committed before age 23 to include those 25 or younger.
• AB 1448 (Weber) allows the Board of Parole hearings to consider the possibility of granting parole to an elderly prisoner who has served at least 25 years in prison. A signing message can be found here.
• SB 180 (Mitchell) repeals the three-year sentence enhancement for certain prior drug convictions that are added to any new conviction. 
• SB 190 (Mitchell) ends the assessment of fees on families of youth in the juvenile justice system.
• SB 312 (Skinner) authorizes courts to seal juvenile records for certain offenses.
• SB 393 (Lara) authorizes record sealing and removes barriers to employment for those arrested but never convicted of a crime.
• SB 394 (Lara) ensures compliance with U.S. Supreme Court decisions by allowing children sentenced to life without the possibility of parole to be eligible for a parole hearing after 25 years.
• SB 395 (Lara) requires children aged 15 years or younger to consult with an attorney before waiving their rights and before a custodial interrogation.
• SB 620 (Bradford) restores judicial discretion regarding the imposition of firearm enhancements. Judges retain full authority to impose such sentencing enhancements. 
• SB 625 (Atkins) creates an honorable discharge program for youth who successfully complete probation after release from the Department of Juvenile Justice.

For full text of the bills, visit: http://leginfo.legislature.ca.gov


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Alcohol Monitoring or Home Electronic Confinement: What to do if you have to evacuate

If you are on probation, Home Electronic Confinement (HEC) or required to use wear a Continuous Alcohol Monitoring (CAM) device and either lose power to your home or are required to evacuate please follow these simple advices:

1. Call your probation officer, if you have one assigned to you, and leave a message to update him or her as soon as safely possible. Leave another message anytime there is a change in your situation, such as having to move to a different location.

2. Call your case manager for the HEC or CAM and also the provider and let them know what has happened as soon as you safely can. Leave a message. Call on your home or cell phone so you have a record of the call.

3. If you can, go to one place that is safe and stay there, even if there is no power.

4. Make sure that where ever you stay you have a reliable witness, if possible, to be able to provide proof that you remained in place and did not otherwise violate your probation.

5. If there are any items that you are prohibited from using or possessing at the location where you are evacuating to, such as alcohol, guns, weapons, or drugs, make sure those are removed to a box and placed in a locked room that is not your own or is otherwise made inaccessible to you.

6. Do not do anything that you otherwise would not be able to do if the emergency had not occurred. If a red flag comes up about anything, it is best not to do it. For instance, if you normally would not be able to work during this time, our advice is that you continue to adhere to that requirement. It is best to shelter in place during this time to avoid any hint of impropriety.

7. Sonoma and Napa Counties have been declared a state of emergency so it will not be hard to show you have remained “of good behavior” as required by your probation, but be extra careful rather than sorry.


Wet Reckless vs. DUI: What You Need to Know

A DUI charge is not a matter to be taken lightly. If a police officer suspects that your intoxication level exceeds the legal limit, you could be arrested and have your license suspended.

However, there is a way to combat this. An outstanding legal team working behind you can help bring the DUI charges down to a wet reckless, protecting you from more severe penalties that can follow a DUI.

The Advantages of Wet Reckless Over DUI

The primary difference between a DUI and a wet reckless is substantial: not only do you face shorter jail time, shorter probation, and lower fines, you do not have to adhere to a mandatory license suspension.

However, the most vital advantage of a wet reckless is that there are no mandatory sentencing enhancements that can add to increased jail, higher fines and longer DMV Coursework.

While the consequences of a wet reckless are still significant, it is far better to face the prospect of a wet reckless as opposed to a DUI. Wet reckless is not something you can be initially charged with, as you can only be reduced down to one following a DUI.

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Here are some of the advantages to a wet reckless vs. DUI:

-Reduced fines

-Shorter jail sentences or no jail at all

-Shorter probation (reduced from 36 months to as low as 18 months)

-No license suspensions or restrictions and Shorter DMV course work requirements

-No additions to sentences for second or third DUI offenses

When facing DUI charges, time is of the essence–it is vital you don’t put your future in the wrong hands. Not only is reducing your DUI down to a wet reckless a possible solution to avoiding the harsh consequences of a DUI conviction, it is entirely possible with the help of a competent and highly skilled Sonoma County DUI attorney.

If you call our law firm within 10 days of the DUI Arrest or Incident, we would be able to keep you driving until your case is resolved in the Criminal Court. Otherwise your Driver’s License will be suspended 30 days from the Arrest/ or date of incident!  Don’t let that happen to you.

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Get Answers from a Sonoma County DUI Attorney

Fiumara & Milligan Law have been able to secure many favorable outcomes for clients, only enhancing our firm’s outstanding reputation.  Our practice has always been focused on absolving clients of their criminal charges, especially when it comes to DUI cases.

That is because we believe that every single person has the right to retain representation and protect themselves from the damaging and adverse effects that criminal charges can bring.

Contact Fiumara & Milligan Law for immediate legal counsel concerning your DUI! When you enlist with the help of our firm on your behalf, you can be confident your case is in good hands.

We will analyze the specifics of your particular situation, explain the basics of wet reckless charges, and determine whether or not your charge can be reduced.

California Penal Code 470- Forgery

Receive a free and confidential consultation by calling 707-571-8600 OR 415-492-4507 today.

Get in touch with us as soon as possible if you would like more information about wet reckless or DUI charges!

Please CLICK HERE to learn more about DUI Defense. 


Everything You Need To Know About The Bail Process In California

Getting out of jail is not easy if you’re arrested and charged with a crime in Northern California-especially a felony.

Many suspects arrested for misdemeanors are released “O.R.” (on their own recognizance), but for most suspects who are charged with committing felonies, posting bail may be the only option for getting out of jail while awaiting trial.

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When the charge is a serious or violent felony, or if the defendant is thought to be a flight risk, bail may be denied. If the court finds that there is a substantial likelihood that the person’s release would result in great bodily harm to others the Court will not permit bail or set it very high.

How does bail work in the state of California, and what happens at a bail hearing?

If you are charged with a crime, bail is the sum of money that the court requires you to pay – along with your promise to appear in court on your next court date – in order to get out of jail. In California, you can pay the bail amount with cash, a bail bond, or a property bond.

The courts will accept cash, money orders, and personal, traveler’s, and cashier’s checks. If you appear in court as scheduled, and if you’re found not guilty or if the charge against you is dismissed, your cash bail will be returned to you.

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However, a complicated criminal case may last for a year or longer, and a defendant will not be able to use or invest bail funds while the case is pending. Even when a defendant is acquitted or a charge is dismissed, it may take from 6 to 12 weeks to receive your cash bail back from the county after the conclusion of a case.

If a defendant is found guilty, the bail money can be used toward paying his or her fines. If a defendant does not appear in court as scheduled, that defendant’s bail amount will be forfeited or lost along with property and other assets that may have been used for collateral if a bail bonds company was involved.

Paying for bail with cash is unusual, simply because not very many of us can simply write a personal check for a bail amount. Bail is never cheap. Although you can pay the full bail amount in cash if you are able, most people obtain a bail bond through a bail bondsman. A bail bondsman usually loans a defendant the full amount of the bail for a ten percent, up-front, nonrefundable fee.

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ONE Benefit among Many When Hiring a Private Attorney or Law Firm

Our firm has worked it out with the bail bond companies that upon a defendant hiring our law firm, the bail company will return a percentage of the proceeds paid by the defendant or whoever posted bail.

HOW MUCH IS BAIL IN CALIFORNIA?

In California, a bail amount depends on the seriousness of the criminal charge and on the jurisdiction where the charge is filed. Each county in California has established its own list of crimes and bail amounts—known as its bail schedule. Some Counties “stack” the schedules to increase the bail amount.

For the most serious crimes in this state, bail can be a million dollars or more, although $20,000 and $50,000 are more typical bail amounts for less serious offenses. In Northern California, if someone cannot afford bail or believes that his or her bail amount is unfair or excessive, an experienced North Bay criminal defense attorney can request a bail hearing on that defendant’s behalf.

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BAIL HEARINGS ARE VITAL TO GETTING YOUR CLIENTS OUT OF JAIL QUICKER

At a California bail hearing, a defendant and his or her attorney can ask the court to reduce the bail amount or to drop bail entirely and release the defendant on his or her own recognizance. Judges in this state have wide discretion to establish, modify, eliminate, or deny a defendant’s bail.

If our Firm cannot convince the Judge to release our client on OR (without bail) then we try to persuade the court to allow the defendant to be released on no bail, but agree to a plan of formal, supervised probation consisting of GPS monitoring, drug and alcohol testing, and visits to the probation office. If these two request fail then our attorneys will fight zealously to convince the court to severely reduce the amount of bail so that client defendant can return to work and also more easily prepare trial.

The FOUR main factors that a California judge will consider when fixing the amount of bail are: (1) the seriousness of the offense; (2) the defendant’s previous criminal record; (3) the probability that the defendant will make future court appearances and; (4) the safety of the general public if the suspect is released.

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CAN A CALIFORNIA JUDGE INCREASE A DEFENDANT’S BAIL AMOUNT?

You may not know that while a judge in California can reduce a defendant’s bail amount, a judge may also increase a defendant’s bail amount if the judge believes that such action is warranted. If a defendant seeks a bail reduction, for instance, the prosecutor may bring new information or evidence to the court’s attention, and a judge may believe that the new information or evidence warrants a higher bail amount.

When a suspect is accused of a serious felony, (sex and violent offenses are scrutinized more carefully by judges) a California judge usually will not reduce that suspect’s bail amount below the minimum bail schedule amount listed by that jurisdiction. In such a case, the judge would have to be persuaded by “unusual circumstances” in the case or “good cause” to order a lower bail amount. A defendant’s other option is to ask to be released “O.R.”

CAN AGREEING TO CONDITIONS REDUCE A DEFENDANT’S BAIL?

An experienced North Bay criminal defense attorney may recommend proposing specific bail conditions to the judge. If a defendant will agree to certain specified bail conditions, an otherwise resolute judge may be persuaded to reduce a bail amount or even sign off on an O.R. release. Some of those conditions include supervised probation conditions, a strict stay away order or a CPO, GPS or electronic monitoring.  A judge may not however impose any bail condition that violates a defendant’s constitutional rights.

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Every criminal defendant in the United States has the right to an attorney. If you are charged with a crime, exercise that right, and do not try to act as your own attorney. A good California defense lawyer can give those facing criminal charges sound and reliable legal advice regarding bail options, defense strategies, jail alternatives and the other matters that anyone who is charged with a crime in Northern California will face. For those faced with the difficulty of paying hefty bail fees, there are local public resources, financial support programs for parents and other government resources.

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WE Always Look for Ways to REDUCE or ELMINATE BAIL for OUR Clients!

WE do our homework before the Bail Hearing and provide a checklist to the Court showing:

  • Provide the Court with defendant’s close ties to the community—including bringing to the Court’s attention sworn affidavits, or character letters of reference, among other indicia;
  • Evidence of how long the defendant and defendant’s family has lived in the Community.
  • Evidence that defendant is gainfully employed and provide evidence of the length of employment—even if we have to have the employer appear in Court
  • Provide evidence of defendant’s ownership of property in the community
  • Provide the Court with information that the defendant will show up for the next court appearance since the defendant has no prior criminal history and no warrants or failures to appear to Court in any other case, or jurisdiction.

SINCE 1992 FIUMARA & MILLIGAN LAW HAS BEEN FIGHTING EVERY STEP OF THE WAY FOR ITS CLIENTS

California VC 23152(e)- Driving Under the Influence of Drugs

If you are arrested for a crime, you should IMMEDIATELY contact and hire an experienced and highly skilled criminal defense attorney immediately from the Fiumara & Milligan Law Firm.

WE are able to get you a reduction in your bail from 7% to 10% by the mere fact that we are reputable and Bail bonds companies trust us.

CONTACT US IMMEDIATELY

First and foremost, we have the resources and experience to get the job done.

Second, we offer payment plans for our clients and work with them to ensure they get the BEST LEGAL defense at an affordable rate.

Third, our results speak for themselves and we have obtained numerous DISMISSALS, REDUCTIONS, & NOT GUILTY VERDICTS for our clients since 1992:

http://NorthBayLegalDefense.com/case-result/

Fourth, you can read about our excellent recommendations and reviews from satisfied clients and colleagues alike at AVVO https://www.avvo.com/attorneys/95405-ca-michael-fiumara-109708/endorsements.html who has given our Law Firm a superb rating!

Excellent YELP rating: https://www.yelp.com/biz/fiumara-and-milligan-law-pc-santa-rosa   

Excellent GOOGLE rating: https://www.google.com/search?safe=off&q=fiumara+and+milligan+law&lrd=0x808447fdc48e1f23:0x60bb0e925234761c,1,&cad=h

Finally, we have been nominated Top 100 Trial Lawyers, http://www.thenationaltriallawyers.org/profile-view/Michael/Fiumara/13477/

We know what it takes to achieve satisfaction and success.

If you would like to discuss your criminal charges with a highly skilled and very knowledgeable attorney from FIUMARA & MILLIGAN LAW, PC, or if you wish to learn more about how we can fight for you, please contact our law firm in Santa Rosa, CA in Sonoma County at: 707-571-8600 or our San Rafael, CA office centrally located in Marin County at: 415-492-4507.

“The Right Attorney makes all the Difference.”

Please CLICK HERE to see our Ten Hot Tips On Bail. 


Community Announcement: Sonoma County Sheriff’s Office To Conduct Sweeps Of Sex Registrants

The Sonoma County Sheriff’s Office Domestic Violence / Sexual Assault unit recently planned and conducted a county wide sex offender compliance check called, “Operation Clean Sweep”.
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The operation involved the Rohnert Park Police Dept. of Public Safety, Sonoma Police Dept., Windsor Police Dept, Santa Rosa Police Dept, Sonoma County Probation, Sonoma County DA Investigators, Santa Clara County Sheriff’s Office and the US Marshals.

Currently there are approximately 800 registered sex offenders in Sonoma County. Operation Clean Sweep provided an opportunity for local law enforcement agencies to work in collaboration, providing the personnel to safely contact and update their records of each jurisdiction.
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The goal of the operation was to contact registered sex offenders in the listed cities’ jurisdictions and rural county areas. The operation consisted of probation searches, parole searches, warrant services, and compliance checks.
The operation took place over a four day period. Law enforcement contacted 410 sex offenders and conducted 42 probation /parole searches.
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During the operation 12 sex offenders were arrested; Law enforcement served 6 warrants, arrested 1 felon in possession of a handgun and 1 felon in possession of a stun gun. Additionally 2 offenders were arrested for being in possession of illegal narcotics and 2 sex offenders were arrested for failure to register as sex offenders.

Law enforcement also located and recovered a stolen car, this case is still under investigation. There are approximately 14 additional cases that are under investigation for other sex offender violations.

California is one of the few states which has a life term requirement for sex offenders. However, the sex offender law could be changed shortly. For more information on Senate Bill 384: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB384.

For registered sex offender information in your community you can log into the Megan’s Law website.

If you are one of those caught up in a police sweep, your constitutional  rights may have been violated if your name was taken off Megan’s List and the sex registration list (and somehow, the Court or the system did not reflect this fact)  or you were mistakenly identified as a convicted sex offender!
Fiumara & Milligan Law Can Help! 
Please see our dedicated webpage on Sex Crimes, CLICK HERE
Please see penal code sections on Sex Crimes, CLICK HERE  and HERE, HERE, HERE & HERE
For Jail Alternative options that we can help you with, CLICK HERE

The Case of the 5-Year Old Who Made a Bomb Threat: Capacity to Commit a Crime

The Case of the 5-Year Old Who Made a Bomb Threat: Capacity to Commit a Crime

I am sure that many of you have heard of the news that a 5-year old was suspended for one day from his school in Modesto, California, for making a terroristic threat.

The reason? When a Great Valley Academy school teacher asked the child to take his backpack off, he responded that he couldn’t because if he did, it would explode. Of course, when the teacher looked inside the backpack, there was no tick, tick, tick of a timer, no lit fuse, no trip wires, and for goodness sake certainly no bomb! Yet he was suspended.

The Case of the 5-Year Old Who Made a Bomb Threat: Capacity to Commit a Crime

Initially, his parents were told that Jackson Riley was suspended for violating the school code of conduct, but when his parents pointed out that the code states it only applies to 4th through 12th grade students, the school administration changed the reason to making a terroristic threat.

The accusation raises the legal issue of capacity because most people know that a 5-year old is still living in a world of magic and make believe and is still learning about right and wrong.

In law, when asking about capacity, we are asking about whether a person is capable of doing some act, such as signing a will, testifying at a trial, or committing a crime, to name a few. In the Jackson’s case, the question is about that last one.

Does a 5-year, as a matter of law, have the capacity to commit a crime? A fun starting place to answer that question is by finding out what constitutes a terroristic threat under California law?

A person is guilty of making a terroristic threat when they threaten a person with death or great bodily injury and the threat is so unequivocal, immediate, and unconditional, that the person against whom it is made actually believes it will be carried out. A person is guilty of this crime ­whether or not the person who made it actually intended to do so. (Penal Code section 422)

That underlined section makes this story even more bizarre because to be guilty of the crime you don’t even have to intend on actually hurt anyone, you just have to make the threat under circumstances where the threatened person actually believes you. This means that Jackson could be guilty of a terroristic threat even though there was no bomb.

But does he have the capacity to commit the crime? The word “capacity” in this context has a legal definition and depending on the circumstance, the definition can be different. For instance, if we are talking about the capacity of a person to testify, then the definition of capacity is that the person know right from wrong, true from false, have the ability to recall the events testified to. However, for the purposes of the capacity to commit a crime we look to Penal Code section 26 for the definition.

That codes simply states that all persons are capable of committing crimes except children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. So, capacity in the Jackson’s case comes down to whether the little tyke knew it was wrong to tell the teacher his backpack would explode if he took it off.
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To analyze the situation, we must first assume, per Penal Code section 26, that he did not have the capacity to commit the crime. However, if he were to be put on trial, then the prosecutor would try and overcome that assumption by proving that the Notorious Modesto Jackson knew he was wrong when he threatened that his backpack would explode.

To do this, the prosecutor would have to present evidence proving little Jackson has the experience and understanding, despite being only 5-years old, to have known it was wrong to make the make the statement that his backpack would explode if he took it off. The way this would be done would be to poor over Jackson life to show he had the experience to know wrongfulness.

For instance, evidence of past criminal convictions and past incidences of making the same threat would be relevant. The district attorney may be able to have the judge order psychological evaluation. A psychologist’s opinion would be very relevant on the issue of whether Jackson had the intellect to understand right from wrong.

However, the reality is, very few people, if any, are going to believe that a 5-year old could commit a crime. Plus, can you imagine if Jackson were placed on trial for committing a terroristic threat? I can.

Judge: “You may now cross examine the witness.”

Prosecutor: “May I call you the Notorious Modesto Jackson?”

Justin Milligan, Fiumara & Milligan Law attorney: “Objection – prejudicial!!!”

Jackson: “Sure! I would like that.”

Judge: “Don’t answer the question, son, until I’ve ruled on the objection.”

Jackson: “Okay.”

Judge: “Overruled, I like the sound of Modesto Jackson too. Prosecutor, you may continue.” (An audible groan can be heard from the defense table, earning a sharp look from the judge.)

Prosecutor: “You knew it was wrong to say your backpack would explode, didn’t you, Mr. Notorious Modesto Jackson?”

Jackson: “No.”

Prosecutor: “You didn’t know it was wrong, Mr. Notorious?”

Justin: “Objection, argumentative.”

Judge: “Overruled. You may answer the question.”

Jackson: “No. It wasn’t wrong because I’m a hero.”

Prosecutor: “For goodness sakes, Modesto Jackson! What do you mean by that?”

Jackson: “If I had taken the backpack off, it would have exploded and hurt my teacher so I was going to go outside to take if off there so everyone else could live.”

Which is exactly the point his parents made in the Modesto Bee article about him. http://www.modbee.com/latest-news/article174321526.html.

For more info relating to Juvenile Crimes, please CLICK HERE

At Fiumara & Milligan Law, we handle all criminal defense law matters throughout Sonoma County, Marin County and the entire North Bay.

Call us today at 707-571-8600 OR 415-492-4507. We have two conveniently located offices in Santa Rosa in Sonoma County and in San Rafael in Marin County. 

Our operators are standing by 24/7 ready to help YOU! 

“The Right Attorney Makes All the Difference” 


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AN URGENT SANTA ROSA POLICE DEPARTMENT COMMUNITY ANNOUNCEMENT

 

Community: 17-12469 Child Annoyance Case in Santa Rosa

REAL CASE SCENARIO:  On September 18, 2017 at about 1:00 p.m., the Santa Rosa police department received a report from a 14-year-old girl regarding her being accosted by a man near a bus stop this morning. According to the victim, at about 7:30 a.m. she was waiting for a bus near the intersection of Bennett Valley Road and Santa Rosa Ave.

She was approached by a man who asked her how old she was. Although she ignored him, he continued to make verbal advances toward her and asked if he could sit next to her. She continuously told him, “no”, but he became insistent. He asked her if she knew why he wanted to sit next to her. He then used sexually explicit profanity to describe sexual acts he wanted to do to her.

The victim got up from the bus stop and ran away from the area. She described being frightened of the man during the incident and felt that he was going to try to come after her if he got closer.

The girl described the suspect as a white, male in his 30’s or 40’s. He was about 5’11” tall and had a medium build. He had a bald head, a goatee and beard. He was wearing black sweatpants with a vertical red stripe and a black puffy jacket. She described him as being loud and belligerent.

The Santa Rosa Police Department suggests that the community in the area be vigilant for unfamiliar individuals who approach children and to report suspicious circumstances to the police when they occur.

This suspect has violated California Penal Code 647.6 annoying or molesting a minor

Under California Penal Code section 647.6, it is illegal to annoy or molest any minor under the age of 18 while motivated by an unnatural or abnormal sexual interest in the minor.

In order for the prosecution to prevail in a case of annoying or molesting child, the state must prove the following elements:

  1. You engaged in conduct directed at a minor AND
  2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by your conduct AND
  3. Your conduct was motivated by an unnatural or abnormal sexual interest in the minor AND
  4. The minor was under the age of 18 years at the time of the conduct

SEVERE PENALTIES FOR PENAL CODE 647.6 annoying or molesting a minor/ child

According to the California Penal Code 647.6, annoying or molesting a child is a misdemeanor punishable by up to a year in county jail and a maximum $5,000 fine. However, this offense can also be charged as a felony, and the defendant could face from 16 months to 3 years in prison in addition to a maximum $5,000 fine.

Therefore, Penal Code Section, 647.6 is known as a “wobbler” since it can be charged as either a misdemeanor or as a felony.  However there are several factors that can increase the sentence and they are:

  1. If you have a prior misdemeanor annoying or molesting conviction.
  2. If you have a prior felony conviction for this offense pertaining to a minor.
  3. If you are a registered sex offender pursuant to California Penal Code Section, 290.

LET OUR TEAM OF EXPERINECED ATTORNEY FIGHT FOR YOU– DEFENSES TO CALIFORNIA PENAL CODE SECTION 647.6

There are a number of defenses that a California criminal defense lawyer at Fiumara & Milligan Law, PC can raise on your behalf. Your lawyer can argue:

  • You had a good faith belief that the victim was 18 years of age or older
  • Your conduct was not directed at a minor
  • Your conduct was not motivated by an unnatural or abnormal sexual interest in the minor
  • Your conduct would not have disturbed, irritated, offended or injured a normal person

Depending on the facts and circumstances of your case, each of the abovementioned defenses can be advanced on your behalf.

Other defenses to Penal Code Section 647.6

As previously mentioned, if the conduct was not motivated by sexual interest or was not likely to disturb or irritate a child, the defendant would not be guilty of this offense.

Unfortunately this is a charge that may be subject false accusations especially if the child is mistaken or the child’s parent coaches the child to make the allegations in order to cause trouble for the defendant or to gain advantage in a court or child custody battle.

Since sentencing and punishment for this violation of California Penal Code Section 647. 6, annoying or molesting a child can be very severe, you will need a strong defense team and we offer that!

Other Related Offenses/ Charges include:

  1. California Penal Code Section 288–Lewd Acts with a Child
  2. California Penal Code Section 5–Statutory Rape
  3. California Penal Code Section 272–Contributing to the Delinquency of a Minor.

Contact us:

We have been successfully defending clients facing all types of criminal charges in Sonoma and Marin Counties, since 1992.

The 100 Trial Lawyers Association has recognized us as one of the best criminal defense attorneys in the country! 

Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.

Don’t bargain with your freedom! The right attorney makes all the difference between your freedom and incarceration!

Please CLICK HERE to visit our dedicated page on sex crime charges for more info. 

Please CLICK HERE for more into on the arrest in child annoyance investigation.  


Expunging Your Criminal Record Will Improve Your Life

Everyone makes mistakes. For some, those mistakes translate into contact with law enforcement, arrests, criminal charges, and, unfortunately, criminal records.

Aside from having to pay the price of a conviction, including fines and fees, community service, probation, and even jail or prison time, being convicted of a crime can create a number of collateral consequences and potentially place limitations on their personal and professional success that severely impact one’s future.

Expungement

At Fiumara & Milligan Law, PC– Since 1992 our experienced and compassionate legal team has worked with many clients who had made unfortunate errors of judgement and were forced to face our criminal justice system. While all defendants have concerns about immediate penalties, they are also concerned about the long-term effects of a conviction and a ‘record.’ Fortunately, there may be options for defendants convicted of either a misdemeanor or a felony. Our attorneys know firsthand how these types of convictions can impact our clients’ future. 

An expungement is the legal process of sealing a criminal record. Whether you are eligible to expunge a conviction and how that expungement will work depends on a number of individual facts unique to your case and your situation, including the nature of your charge, the time that has passed since the conviction, whether you successfully completed probation without any violations, and your criminal history, among others. When available and done effectively, expungements can provide several worthwhile future benefits, including:

Sealing your record – When you seek an expungement, your plea will be changed to not guilty and records will indicate that your case has been dismissed. For most background checks, your criminal record will not be shown. However, there may be certain instances where an arrest or charge may be ascertained by a government agency or some types of employers.

Employment – When a conviction has been expunged, you can legally answer “no” when an employer asks if you have ever been convicted of a crime. This can reduce limitations that set you apart from other candidates who do not have a criminal record. Additionally, an expungement can help you pursue or retain certain types of jobs in professions that typically preclude convicted individuals from holding professional licenses or certifications needed for employment.

Finances – A record of conviction can have an adverse effect on a number of financial endeavors, including credit ratings, housing and loan applications, and even student aid and loan eligibility in certain cases. Without a conviction on your record, you won’t be impacted by your past when seeking loans, government housing, student aid or other benefits that you may need.

Closure – Expunging a criminal conviction can provide the sense of closure many people need to move forward with their lives. Aside from the tangible benefits that clear the way for educational opportunities, employment and financial endeavors, you can benefit from the psychological closure of a mistake in your past, and pursue a future uninhibited by fear or shame.

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California laws do recognize the ability of convicted individuals to “rehabilitate” themselves and learn from their mistakes, which is why post-conviction remedies such as expungement are available.

By allowing certain misdemeanor and felony charges to be expunged, after successful completion of probation, California Law enables individuals to shirk the shroud of a conviction, pursue more opportunities in life, and navigate their future as productive and contributing members of society.

It is important to remember that expungements do have limitations, and that they are not always the silver bullet. For example, some charges can still constitute a prior offense and be used to enhance penalties should you be charged with a new crime, even after an expungement.

Certain professions, such as public employment, may also still require you to disclose a conviction that was expunged. Driver suspensions, registration on offender lists, and revocation of certain civil rights may also go unaffected after an expungement, depending on the facts involved. Our attorneys can help you better understand how an expungement can work to benefit you given your unique situation.

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The Fiumara & Milligan Law Firm is passionate about protecting the rights and the future opportunities of our clients, not only when they are under investigation or facing charges, but also when they need to navigate the criminal justice system to obtain expungements that can help them improve their personal, professional, and financial opportunities given them renewed hope for the future.

Our law firm has over 40 years of combined experience representing clients who have faced all types of criminal charges, and who sought expungements as a means to improve their future. Our passion for making a difference in clients’ lives can help you take the necessary steps to improving yours. WE don’t allow anyone or anything to stand in the way of Justice or your desire to improve your future.

santa rosa criminal lawyer

To discuss expungement options and alternatives or a criminal charge with Fiumara & Milligan Law, PC contact us today for a FREE and confidential consultation at 707-571-8600 OR 415-492-4507.

…”The Right Attorney Makes All the Difference…

For more information on Expungements, please CLICK HERE.


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Case Results

  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • POSSESSION OF METH- DISMISSED
  • FELONY ARSON- RESOLVED
  • RESISTING ARREST- RESOLVED
  • POSSESSION OF MARIJUANA- REDUCED
  • PROBATION VIOLATION- RESOLVED
  • POSSESSION OF COCAINE- REDUCED
  • CONCEALED WEAPON- DISMISSED
  • DRUNK IN PUBLIC- RESOLVED
  • JUVENILE DRUG/WEAPON- RESOLVED
  • FELONY RAPE- REDUCED
  • DUI- Hung Jury
  • SOLICITATION OF PROSTITUTE- DIVERSION
  • POLICE EVADING- REDUCED
  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • FURNISHING ALCOHOL/MINOR- RESOLVED
  • RESISTING ARREST- DISMISSED
  • ACCIDENT DUI- DISMISSED
  • CANNABIS CHARGES- REDUCED
  • DOMESTIC VIOLENCE- DISMISSED
  • DRUNK IN PUBLIC- DISMISSED
  • PUBLIC INTOXICATION- DISMISSED
  • JUVENILE CASE- DISMISSED
  • PROSTITUTION SOLICITATION- DISMISSED
  • ASSAULT & BATTERY- DISMISSED
  • ARSON- RESOLVED
  • PETTY THEFT- COMMUNITY SERVICE
  • POSSESSION OF NARCOTICS- DISMISSED
  • FELONY MARIJUANA- MISDEMEANOR
  • FELONY WEAPONS POSS.- REDUCED
  • Felony Assault - JURY ACQUITTAL
  • Domestic Violence - JURY ACQUITTAL
  • Felonies - REDUCED to 1 MISD.
  • Felonies - REDUCED to 1 MISD. NO JAIL
  • Sex Felonies - REDUCED/NO JAIL
  • Prostitution - DIVERSION/NO JAIL
  • 2nd Theft - DISMISSED
  • Drug Felonies - NO JAIL
  • Driving Misd - REDUCED TO INFRACTION
  • Resisting Arrest - DISMISSED
  • Juvenile Sex Felonies - DIVERSION
  • Multi-ED CODE Charges - REMAIN IN SCHOOL
  • 3 VOP'S - ALL DISMISSED
  • 1st Degree Burglary - REDUCED

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