CRIMINAL LAW

Overview

In Criminal Law there is no such thing as a person being found innocent of the charges they are accused of.  An accused person can only be found to be guilty or not guilty.  At times the charges can be dropped altogether or a civil compromise can be reached.  It is not uncommon for a settlement to be reached on or during a jury trial, but the reality is that most cases settle before a jury is selected.  The following is a basic outline of the different stages or “proceedings” in a case involving a felony allegation:

  1. Arraignment and bail setting
  2. Pre- Preliminary Hearing negotiations and discovery
  3. Preliminary Hearing
  4. Arraignment after a Preliminary Hearing
  5. Pre-trial negotiations
  6. Motions (if applicable)
  7. Trial setting conference
  8. Trial
  9. Sentencing (if applicable)

Although motions and bail review hearings can be set at almost any stage of the proceedings, it is important to note time requirements and when in the proceedings it would be most productive to enter any motion.

Infraction/Misdemeanor/Felony

Infraction:  Crime that does not rise to a level of a Misdemeanor or Felony- usually traffic fines.  Driving under the influence of drugs or alcohol is not an infraction.

Felony:  term of incarceration can be more than 1 year

Misdemeanor:  term of incarceration cannot be more than one year.

Bail

Bail is set by the presiding judge.  Many issues are considered during the “argument” for or against setting the amount of bail or allowing no bail at all.  In determining the amount of bail, a judge may consider:  community and family ties, residency, flight issues, nature of the crime, health issues, extenuating circumstances as well as prior criminal history, threats to public safety, prior failures to appear and the possibility that the case may settle early or late in the proceedings.  Each county has a recommended bail schedule and attorneys argue to either follow that recommendation or set bail at a different amount.

Bail can be set and later reviewed.  Usually notice must be given to the prosecution in advance.  A change in circumstances may alter the previously determined amount.  If a person is later charged with more crimes, the amount may go up; conversely, if a person is not held to answer on some previously alleged charges, the bail may go down.  It is extremely important to consult with an attorney before posting bail.  This may save you thousands of dollars.

No Bail Holds

A person may not be granted bail because he or she has I.C.E (immigration and customs enforcement) hold, parole/probation holds, other warrants, nature of the crime or the accused, failures to appear or issues concerning public safety.

CRIMINAL MATTER INFORMATION

Select any criminal matter on the right to see details:

  • Burglary 1st/2nd Degree

    1st   Burglary is typically defined as the unlawful entry into almost any structure (not just a home or business) with the intent to commit any crime therein (not just theft/larceny).  No physical breaking and entering is required; the offender may simply trespass through an open door. Unlike robbery, which involves use of force or fear to obtain another person’s property, there is usually no victim present during a burglary.  FIRST DEGREE BUGULARY IS ALWAYS A STRIKE OFFENSE.

    2nd  Burglary is often referred to as commercial burglary and is often associated with passing bad checks, credit cards or gift cards.  The crime often involves persons using drugs.  Often it is the parents or loved ones of the offender who seek legal assistance on behalf of the accused.  It is here that drug diversion or intervention programs may come into play.  Attorney Luis Valencia knows the local drug policies and can help you avoid jail.

  • Crimes Involving Minors

    California Penal Code 273a PC and 288

    This area of the law must be handled with extreme caution as they involve persons (Minors) who the court has an expressed interest in protecting.  Child Protective Service (CPS) issues can arise and are a nightmare.  A working knowledge of Child Protective Services is crucial.  Attorney Luis Valencia has successfully kept CPS from taking his clients’ children away.   Moreover, these cases are usually handled by special prosecutors.

    The accusation of these types of charges carries a stigma that many people feel they will not overcome.  The truth of the matter is that most of these cases do not go to trial, and many are reduced to a lesser charge and even dismissed.  It is imperative to consult with an attorney as soon as an investigation is underway, not when charges are formally filed.  Attorney Luis Santiago Valencia has extensive experience handling these types of cases through southern California.  Calling our office and securing excellent representation early on is strongly advised.

  • Lewd Conduct/Molestation/Sex with Minor

    288 (a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

    The term Molestation means “to bother”.  Simply bothering a child can be construed as a crime.  Any charge of sexual misconduct with a minor has steep consequences.  It is not uncommon for false allegations to arise from family misunderstandings, divorce, anger issues etc.  Your attorney must be on your side and believe in you from start to finish.  Your attorney should have trial experience concerning Penal Code Section 288.  It is equally important that your attorney have a track record of successfully defending against such charges.  Expert Witnesses and circumstantial evidence play a major role in the courtroom; your attorney should know how to counter unfavorable evidence and facts.  Luis Santiago Valencia is the only attorney assigned to these cases and he has all the qualifications and track record necessary to put your mind at ease.  Do not risk your reputation and freedom by choosing an unqualified attorney.  Please make an appointment as soon as possible.  Speak with attorney Luis S. Valencia directly, get real answers and know that you are in good hands during a tough time.

  • Criminal Enhancement: Gang, Gun, G.B.I., Priors, Crime-bail-Crime

    P.C. 422

    Criminal threats are a matter of interpretation.  The charge can be more aggravated if it involved existing or prior domestic violence issues.  This charge must be evaluated on a case-by case basis and taking the matter all the way to trial is not uncommon.  Although it can be a “strikeable” offense, it can also be and has been reduced by this office to Penal Code 415- disturbing the peace.

  • Gang Enhancement

    P.C. 186.22

    Gang enhancements have severe penalties.  Persons found guilty of gang- related offenses may be required to register with local law enforcement.  Gang enhancements are only handled by attorney Luis Valencia.  It is most important to understand who the prosecution will use as a gang expert and how to counter such testimony.  The use of a gang expert for the defense is crucial.  Even if an accused person is a known gang member, the prosecution must prove that the alleged crime would benefit the underlying criminal street gang.    Attorney Luis Santiago Valencia is one of the few attorneys in the state of California who has had gang enhancements dropped altogether and dismissed by a judge at a formal preliminary hearing.  It is imperative to seek out an attorney who understands not only how to handle gang cases, but also has working knowledge of the difference between gang culture and actual gang membership.

  • Criminal Threats

    The most common form of drug diversion programs in California are P.C. 1000 and Prop. 36.  Dependency issues often give rise to crimes outside of the use or sale of controlled substances.  Attorney Luis Santiago Valencia has consistently helped his clients enter rehabilitation programs instead of jail.  By no means does he do this by rushing your case through the court process.  Our office has a clear understanding of how important treatment is.  Attorney Luis Santiago Valencia advocates sobriety over jail time for you.

  • Drug Diversion Programs/Civil Compromise/Charges Dismissed

    The most common form of drug diversion programs in California are P.C. 1000 and Prop. 36.  Dependency issues often give rise to crimes outside of the use or sale of controlled substances.  Attorney Luis Santiago Valencia has consistently helped his clients enter rehabilitation programs instead of jail.  By no means does he do this by rushing your case through the court process.  Our office has a clear understanding of how important treatment is.  Attorney Luis Santiago Valencia advocates sobriety over jail time for you.

  • Civil Compromise

    The law may allow a person to make due on otherwise unacceptable behavior by entering into a Civil Compromise that usually involves some form of restitution to the effected party.  The benefit of a civil compromise is that a person could avoid or limit their criminal and possibly civil liability.  Civil compromises are not Deferred Entry of Judgment (DEJ) although some forms of DEJ may involve a civil compromise.

  • Deportation Issues

    Penal Code section 273.5, 243(e) (1) is arguably the most common charge in domestic violence.  Domestic violence cases have changed significantly over the years and are not like any other charge a person may face.  Unlike other crimes, prior instances of domestic violence can be used against a defendant even if it involves a totally different victim.  In addition, the reporting agency may be allowed to testify even if the victim recants.  Usually “special” prosecutors are assigned to these cases.  It is extremely important that anyone representing you understands the limitations the law places on the prosecution and the police.  Attorney Luis Santiago Valencia has won a great number of these cases at the preliminary hearing and avoided trial.

  • Domestic Abuse

    Penal Code section 273.5, 243(e) (1) is arguably the most common charge in domestic violence.  Domestic violence cases have changed significantly over the years and are not like any other charge a person may face.  Unlike other crimes, prior instances of domestic violence can be used against a defendant even if it involves a totally different victim.  In addition, the reporting agency may be allowed to testify even if the victim recants.  Usually “special” prosecutors are assigned to these cases.  It is extremely important that anyone representing you understands the limitations the law places on the prosecution and the police.  Attorney Luis Santiago Valencia has won a great number of these cases at the preliminary hearing and avoided trial.

  • Driving Under a Suspended License

    P.C. 14601

    Unfortunately, this crime may carry expensive penalties and if there are multiple instances of driving under a suspended license; jail time may be required.  Depending on the circumstances jail may be avoided.  Attorney Luis S. Valencia knows how to avoid jail time and get you back on track.  There are usually two goals in the course of cases: 1. Limit exposure 2. Get your license back.

  • Drunk Driving (Defenses and Rates)

    You have only 10 calendar days from the date of your arrest to contact the DMV.  It may be necessary to contact the DMV in Sacramento, and not locally; otherwise, your license can be suspended for four months to life depending on the charges and your prior history.  Out of state D.U.I may and usually come into play.  With each new D.U.I., the penalties increase.  Multiple DUIs the following may occur:

    Conviction of Third Violation of §23152; Punishment:

    1. If any person is convicted of a violation of Section 23152 and the offense occurred within ten years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver’s license to the court in accordance with Section 13550.
    2. Any person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three yearssubsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

    Should you get a lawyer? YES!

    Many law firms claim that they only specialize in DUIs and beat your DUI outright.  Be very weary of such claims.  DUIs have national advocacy groups that weigh in heavily and advocate for victims of DUIs (i.e. M.A.D.D.).  The public perception is strongly against D.U.I.s.  The vast majority of the time D.U.I.’s are settled.  If a D.U.I. charge can be beaten at trial, it is imperative to have a trial lawyer who can help you win.  If going to trial is not an option, then the cost of D.U.Is must be factored in.  Don’t feel suckered by anyone representing you.  Having an honest assessment of your case and a realistic look at your case will save most people a lot of money.

    1st time DUI are never more than $2,500.00 even if trial is necessary.  If your case is one that can be fought and won, it should be, but the last thing you should worry about is if your attorney just took your money.

  • Drug Possession/Sales

    Marijuana

    There has been a great deal of controversy with the application of so called “Marijuana” laws.  The attitudes and application of the law differ not only from county to county but from court room to court room.  It is critical for a person facing such charges to immediately contact a lawyer in order to avoid penalties that may have life- long consequences.  Attorney Luis Santiago Valencia has successfully had the authorities return over 20lbs. of marijuana to his clients and had all the charges dropped.

    SB 1449 allows for possession of less than 1 ounce of cannabis from a misdemeanor to a civil infraction. The law went into effect January 1, 2011.

    Proposition 215 (also referred to as the Compassionate Use Act of 1996), removed state-level criminal penalties for the use, possession, and cultivation of marijuana by patients that “would benefit from medical marijuana” and possess a “written or oral recommendation”.  The law and its application at a state and county level have varied since that date.

    California Senate Bill 420, (often referred to as the Medical Marijuana Program Act of 2004) establishing the amount of medicinal marijuana patients and/or their caregivers may grow and possess.

    Heroin

    California Health and Safety Code 11350

    Possession under HS 11350 can be prosecuted as a misdemeanor or felony with up to 3 years in prison. Possession for sale is illegal under Health and Safety Code 11351.  The prosecution can charge a crime as possession for sales and later drop the charge to “simple” possession.  Often there is a lot of work and multiple court appearances are necessary to achieve such end.  The results are well worth the effort as a person accused of possession may be eligible for a diversion program.


    Cocaine

     California Health and Safety Code 11350 (Possession)

    This crime can be charged as a misdemeanor or felony with up to 3 years in prison.  Possession for sale of cocaine is prohibited under H&S Code 11351.5. Penalties for possession for sale of cocaine 2, 3, or 4 years in the state prison.  Crack cocaine carries a 3, 4 or 5 year term. Health and Safety Code 11352 pertains to selling or providing cocaine trafficking and provides for imprisonment for 3, 4 or 5 years. Various enhancements exist in the California Health and Safety Code which may result in very long prison terms; such as selling cocaine, selling near a school zone, and selling large quantities of the drug. The trafficking of cocaine is also strongly associated with organized crime organizations and therefore requires a much stronger presence in court and extensive knowledge of criminal organizations.  Just because someone has been a lawyer for many years does not mean that they know how to defend such enhancements.  It is imperative to try and avoid further charges or enhancements being added to an existing charge.


    Methamphetamine

    Health and Safety Code 11377 & Health and Safety Code 11378.

    Possession of methamphetamine and possession for sale of methamphetamine are both violations of the California Health and Safety code.   Oftentimes, a person who has prior convictions of possession for sales is an addict of methamphetamines.  Prior drug convictions can lead to large sentences.  Attorney Luis Santiago Valencia has the skill and knowledge to avoid large sentences.  Attorney Luis Santiago Valencia has obtained a 3 year offer when other private attorneys could not get the sentence reduced from 21 years.  He has also had a sentence reduced from 8 years to 2 years while other private attorneys could not.  Attorney Luis Santiago Valencia has had the alleged Methamphetamine independently tested and had the case dropped.  Please come in for a free consultation.


    MDMA (ecstasy)

    3, 4-Methylenedioxymethamphetamine (MDMA) is illegal for possession under Health and Safety Code 11377. MDMA is illegal for possession for sale under Health and Safety Code 11378. Those convicted of HS 11378, possession of MDMA for sale, may receive anything from probation up to 4 years in prison.  This drug is strongly associated with a younger user.  It is imperative not only to avoid jail time and probation but also to make every effort to reduce the risks of live-long ramifications associated with a prior drug charge.


    Diversion Programs  

    Persons charged with possession of certain illegal drugs may be eligible for or granted what is commonly referred to as PC 1000.  Also Proposition 36 is a further extension of such programs that seek to treat a drug problem and not incarcerate the alleged offender.  Programs such as differed entry of Judgment or D.E.J. and “Drug Court” seek to treat addiction issues. These programs are not always guaranteed and, depending on the circumstances, a person may not always be eligible for such court granted relief.

  • Fraud

    PENAL CODE SECTION 484-502.9

    The most common form of fraud is cashing stolen or altered checks.  In addition to the possibility of a fraud charge, if the check is cashed at local business, a 2nd degree burglary charge is most often charged.  It is important to note that in any fraud charge, the victim will be entitled to restitution.  Attorney Luis Santiago Valencia knows how to limit the exposure and limit the effect of exaggerated claims of loss are essential in any negotiation process.

    Civil and Criminal Statute of limitations

    Deceit Civ. Code §§1709 and 1710

    Fraud Civ. Code §§1572 (actual fraud)

    A person may commit fraud with the belief that after one-year, the underlying victim is barred from recovery because he or she did not file a civil claim within the civil statute of limitations.  While everyone should consult an attorney who practices civil lawsuits as to the nature of such a claim, often the time to file a criminal lawsuit is longer and carries greater consequences.

    The prosecution generally has 1 year to file charges on misdemeanor crimes and 3 years for felonies.  Not only will a person face jail/prison time for the charge but they may also have to pay restitution with interest as a condition of any probation, parole or criminal settlement.  In fact, the crime is generally looked down on even more if the person thought to deceit the victim with the illusion that only civil remedies were available.


    Insurance Fraud and Workers Compensation Fraud

    The number of attorneys familiar with the procedural aspect of claims associated with filing a false Insurance or Workers Compensation Fraud case is limited because these are two areas of law that often fall outside of common knowledge of criminal lawyers.  In fact, Workers Compensation is administrative law that requires a great deal of knowledge concerning the protocol of claims.  The number of court assigned attorneys with this knowledge is extremely limited and you may be stuck with a person who is unfamiliar with the aspects necessary to champion a case.  Doctors, lien claimants and attorneys are not immune to such charges and the loss of a profession license is definitely a possibility.  Our office has extensive knowledge and handles such claims outside of criminal law.  Attorney Luis Santiago Valencia not only practices criminal law but he also handles workers compensation claims.

  • Murder/Attempted Murder

    Penal code section 187

    Murder

    Penal Code 192(a) – voluntary manslaughter law

    Murder required that a human being be proclaimed no longer alive or dead as a result of the alleged crime.  There are elements to the crime of murder but the area oftentimes becomes confusing as the requirements differ from charge to charge and the actual circumstances of the case.  The unlawful killing of a fetus is murder, Special Circumstances also elevate the seriousness and possible penalties for a homicide (laying in wait, gang related etc.)  The best advice available must be done in person and in the confidence of a licensed professional.  Murder charges are not a time to try to figure it out on your own or worry about cost, it is the time to defend your or a loved one’s rights immediately.  Depending on the circumstances a person will face a life sentence without the possibility of parole and possibly the death penalty.  Attorney Luis Santiago Valencia has handled murder cases and settled them prior to the preliminary hearing in his clients’ favor.


    Attempted Murder

    Unlike Murder no one even needs to be actually harmed for a charge of attempted murder to apply.  If at least one direct (but unfruitful) step towards killing another person (or fetus), and the intent to kill that person is present, then a person may be charged with attempted murder.  Depending on the circumstances, a person will face a life sentence without the possibility of parole.

    If convicted of Penal Code 187 as attempted murder, you face a life sentence with the possibility of parole. You additionally face victim restitution, substantial fines, and a “strike” pursuant to California’s three strikes law.


    Voluntary Manslaughter

    Penal Code 192(a) PC California’s voluntary manslaughter law often referred to as “heat of the passion” defense.  When a person who otherwise would not have committed acts suddenly on impulse and the result is otherwise murder the law allows for either a direct charge of manslaughter or a defense of manslaughter as opposed to outright murder.  A classic example is a spouse catching another spouse cheating and therefore killing either the spouse or the other involved party.  Although the penalties may be less in nature as other forms of murder related crimes, the jail and prison time associated with these crimes is dramatic. Again, it is not a time to try and learn the law on your own or cut corners.  Call our office for a free consultation immediately.

  • Rape

    Penal Code 261

    Rape is generally defined as nonconsensual sexual intercourse accomplished by means of threats, force, or fraud.  Rape can be between spouses (p.c. 262), statutory rape (p.c. 261.5) as well as others.  Such charges are feared by the possibility of a “false” accusation.  The defense of such charges is time consuming and cannot be rushed.  Not only is the underlying charge and the ramifications associated with it serious, a person must also defend their dignity and name in the community.  Feeling comfortable and assured in the defense of such a charge is imperative.  Attorney Luis Santiago Valencia has extensive experience in this area of law.  Please come in for a free consultation.

  • Theft Crimes

    Penal Code 487 PC

    Theft crimes range from non-strike offenses such as Petty Theft (P.C. 484 & 488) Grand theft (P.C. 487) to more serious offenses such as Grand Theft Auto (Penal Code 487(d) (1) PC & Vehicle Code 10851 VC)   and Strike-offenses such as Robbery P.C. 211 and Residential Burglary (P.C 459).  The most important thing to note is the criminal history of the accused and the details of the case.  A person representing an accused must not be scared to a preliminary hearing and force the prosecution to expose the weaknesses in their case.

     A prior conviction for a theft related crime can go from a slap on the wrist to a full-blown nightmare if not properly handled.  The prosecution must prove all of the facts of the case including the allegation of prior criminal history.  Theft crimes are increasingly common.  Having a road map and clear vision of possible outcomes is only part of the equation.  A client must have the time to consider all of their options and defenses while feeling that their lawyer is fearless and willing to go to trial.  Theft crimes are almost always considered crimes of moral turpitude (the person should be doubted).  Our office policy is to never doubt our clients- no matter the charge.

    Estes Robbery

    If a person uses force during the commission of a theft, even a petty theft, the crime can become a “strikable” offense.  This crime often catches people off guard and, depending on the circumstances, the penalties can be high.  Even when a person thinks that they have only committed a minor crime, it is of the utmost importance to seek legal advice.  These cases require a lot of work, independent investigation and a good trial lawyer.  Attorney Luis Santiago Valencia will defend you every step of the way.  Please call us for a free consultation.

  • Strikes

    California’s 3 strike law is one of, if not, the harshest habitual offender laws in the nation.  Even though the law seems to be geared toward habitual offenders a person can be “stike(d)-out” even if it is their first offense. California is the only state in which a misdemeanor crime can be made into a third strike.   The practical effects of the 3-strikes law are (in part):

    • Increased sentencing (enhancements) for succeeding convictions.
    • It does not limit the reach to less violent crimes such as residential burglary (P.C. 459) or even just the threat of committing a crime (Criminal Threats P.C. 422)
    • It allows for terms of 25 year-to-life term for any (later imposed) felony in the California Penal Code.”

    The California 3 strike law is a creature of change and manipulation.  A person may very well walk out of jail after a short jail sentence with more than 3 strikes.  Conversely, there have been people sentenced to life-terms because of a misdemeanor.   Although this has changed in recent years, a person should never risk the effects of a prior strike on a current case. Attorney Luis Santiago Valencia can request that the court or the prosecution not impose previous strikes.  In addition, the date of a previous strike should always be at issue when negotiating settlement.  Avoiding a strike all together is the best policy, but avoiding the harsh reality of California strikes is not something anyone should risk by either being frugal or underrepresented.  A person should always keep in mind that a charge may not be imposed as a strike, but can be amended to include one or more.  Conversely, diligent effort may get a strike reduced to a non-strikable offense.

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