Release Conditions in Sex Offense Cases

When arrested for a California sex crime, the accused is permitted to post bail, to be released on his or her own recognizance (also referred to as OR release) or the offender will be denied bail, based on the specific crime or crimes alleged. Whether or not the individual’s bail may be modified without a hearing will also depend on the charged offense. An experienced sex crime defense attorney is the key to navigating this system with ease and understanding.

The bail for certain sex offenses will be set according to a bail schedule. These offenses include those that involve obscene materials, rape (when the alleged victim is incapable of consenting due to a mental or physical disorder or when he or she is unconscious, under the influence or submits under the false belief that the perpetrator is his or her spouse), statutory rape, spousal rape (when the alleged victim is under the influence or unconscious or is threatened by incarceration or deportation), oral copulation (with a minor over 14 or under the circumstances described above under rape), sodomy (with a minor over 14, under the same circumstances or when threatened by incarceration or deportation), sexual penetration (under the same circumstances), indecent exposure, prostitution, pimping, pandering, bigamy, incest, sexually assaulting an animal, abduction for marriage, contributing to the delinquency of a minor or situations where a public entity employee engages in sexual activity with an involuntarily committed resident.

With respect to the above offenses (some being misdemeanors, some being felonies), the bail may be modified upon an application that may be submitted by the arresting officer, by the defendant or by anyone on his or her behalf. Public safety will be the main consideration for the court in determining whether or not to raise or lower the set bail or whether to release the accused OR.

Certain sex crimes require that a hearing be held before the accused may have his or her bail modified. These crimes include lewd or lascivious acts with a child under 14, sexual penetration with a child under 14 who is also more than 10 years younger than the accused, and the continuous sexual abuse of a child. When a hearing is held, the judge will primarily consider public safety, but will also consider the defendant’s flight risk, his or her prior criminal history and the severity of the pending case. When considering these issues, the judge presumes that the accused is guilty, which is another reason why it is imperative for the accused to have a skilled criminal defence attorney who knows how to persuade the judge otherwise..

There are certain sex offenses where bail doesn’t apply, because they are considered so serious. These include rape, spousal rape, oral copulation, sodomy, sexual penetration or lewd or lascivious acts performed on or with a child under 14 where force or threats were used to accomplish any of these acts, or where the accused acted in concert with another while committing or attempting to commit these offenses.

If arrested on a bailable offense and denied an OR release, the accused can elect to post cash bail or a bail bond. If the accused posts cash bail, he or she remits the full bail amount, which will be returned at the conclusion of the case if he or she attends all court appearances. If the accused posts a bail bond (the more commonly-used option), he or she pays a bail agent or bondsman 10% of the bail amount and the agent then pays the rest. The bondsman may also require additional collateral, which he or she may keep or sell if the bond isn’t refunded at the conclusion of the case due to the defendant’s failure to appear.

The outstanding attorneys at The Kavinoky Law Firm are unsurpassed in California sex crime defense. They are dedicated to helping their clients get released from custody as quickly and inexpensively as possible, and providing the best defense throughout the entire criminal court process. Contact them today for a free consultation.

Prohibited Sexual Conduct By Public Entity Employees

California regulates the sexual activity of those who are responsible for providing care to others in public treatment facilities and public detention facilities by prohibiting sexual activity with those who are involuntarily confined within these institutions. If convicted of this type of sex crime, the accused faces either a misdemeanor or a felony and will most likely lose his or her job as well. The outstanding criminal attorneys at The Kavinoky Law Firm excel in California sex crime defense and are dedicated to protecting their clients from these devastating penalties.

Any employee or officer of a public entity treatment facility or adult or youth detention correctional facility or any employee, officer or agent of a private facility that contracts with a public facility who either rubs or touches the breasts or sexual organs of an adult who is involuntarily confined in such an institution or of oneself in the presence of and with knowledge of the patient or inmate, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or of the other will be charged with a misdemeanor, punishable by up to six months in county jail and a maximum $1,000 fine.

Any person who holds a position as described above who engages in “sexual activity” with such a confined individual will face either a misdemeanor or a felony, punishable by up to one year in county jail or state prison and a maximum $10,000 fine. Within this context, “sexual activity” refers to sexual intercourse, sodomy, oral copulation or sexual penetration.

If an individual is convicted of this offense (and was previously convicted of a violation of this section) the charge will be labeled a felony. Anyone who is convicted of a felony violation of this section who is employed by a Youth and Adult Correctional Agency will be terminated and will not be eligible to be hired or reinstated by a Youth and Adult Correctional Agency.

It must be noted that consent is assumed with respect to this crime, and therefore will not serve as a defense to the charge. It will be a defense, however, that the alleged sexual activity took place between consenting adults during an approved overnight conjugal visit or as the result of physical contact or penetration that was made pursuant to a lawful search or due to bona fide medical examinations or treatments.

In order to best avoid the consequences that may be imposed in connection with this charge, it is imperative that the accused hires a criminal defense lawyer who has mastered California sex crime defense. The skilled attorneys at The Kavinoky Law Firm have done just that. They receive ongoing education and training with respect to this specific area of the law, and keep up-to-date with sex crime laws, defenses and cutting-edge trial strategies. This knowledge gives them a tremendous advantage over the competition, and gives their clients a smooth path through the criminal courts system. With law offices located in Los Angeles and throughout this state, The Kavinoky Law Firm is conveniently located for anyone in need of a criminal defense lawyer who focuses on California sex crime defense. Contact them today for a free consultation, for the most trusted legal advice and for unsurpassed representation.

The social stigma that attaches when someone has only been charged with a sex crime makes it almost impossible to receive a fair trial. The skilled criminal attorneys at The Kavinoky Law Firmspecialize in California sex crime defense and know the most effective ways to dispel the myths that pervade our society, to ensure that their clients receive fair consideration from skeptical judges and jurors.

The following are the top 10 myths that our society readily believes regarding sex offenders.

1. All child molesters are pedophiles.
Fact: Child molesters do so for a variety of reasons, often unrelated to sexual desires. Their victims may be incidental and their primary sexual orientation may even be towards adults. They may molest a child to meet an unmet emotional need.

2. All pedophiles are child molesters.
Fact: Pedophiles have a strong sexual desire towards children but many are content fantasizing in private. Many rely on pornographic materials to fulfill their fantasies in the safety and comfort of their own home, never actually molesting a child.

3. Child pornography collectors molest children.
Fact: Some child molesters use child pornography – not all child porn collectors molest children. Research reveals that many child molesters aren’t stimulated by child porn and (if they collect pornographic materials at all) actually collect adult porn. There is no evidence to suggest that sex offenders use pornography with any more frequency than non-offenders.

4. All convicted child molesters re-offend.
Fact: A convicted child molester may have molested a child because of poor self-esteem, due to a perceived inability to be close with an adult partner or to escape feelings of powerlessness and loneliness. Many molest due to a specific circumstance and not based on an ongoing need.

5. The more serious the initial offense, the more likely the person will re-offend.
Fact: This is perhaps one of the most commonly exploited myths – and easy to dismiss with research and reports. Recidivism (relapse) rates for sex offenders are lower than for the general criminal population and rape (one of the most severe sex crimes) has an extremely low relapse rate.

6. All convicted rapists re-offend.
Fact: This, too, is a largely publicized, political fear-tactic that has no bearing on reality. Convicted rapists have one of the lowest recidivism rates among criminals, and the only group that is lower is convicted murderers.

7. Most sexual assaults are committed by strangers.
Fact: Regardless of whether the victim is an adult or a child, the fact is that most sexual assaults are committed by an individual known to the victim or to the victim’s family. 9 out of 10 rape or sexual assault acts involve a single offender who had a prior relationship with the victim as an acquaintance, intimate partner or family member.

8. Indecent exposers are rapists waiting to happen.
Fact: This is a huge leap. Indecent exposers (also known as flashers) reportedly engage in such behavior to feel validated. Many believe that they are performing a harmless act and that flashing is a victimless crime.

9. Punishment is the best deterrent.
Fact: Certain types of rehabilitation have a much better deterrent effect on recidivism than punishment. The fact is that longer prison sentences have a higher recidivism rate than shorter sentences – those more than 2 years increased the rate and those less than 6 months had no effect on the rate. Research supports that cognitive-behavioral therapy is the best treatment for adult offenders (focusing on the social influences, values and habits that contribute to these crimes, teaching techniques to cope) and that systematic therapy is the best treatment for adolescent offenders (focusing on the needs of family and other social systems that influence these offenders, including peers and school).

10. Treatment for sex offenders doesn’t work.
Offenders who successfully complete treatment programs re-offend less often and less seriously than those who receive no therapy – period. Research continually reveals that sex offenders can be successfully treated.

To learn more, contact the outstanding sex crime defense lawyers at The Kavinoky Firm for a free consultation.

Criminal Law 101 – Post-Conviction Relief

Many individuals convicted of criminal offenses in California worry that their records will follow them forever, but post-conviction relief is an option in some cases to clear a criminal conviction and put the incident into the past. The knowledgeable defense lawyers of The Kavinoky Law Firm are well-versed in California post-conviction relief options, and will fight to help any individual clear up a criminal record. Post-conviction relief options vary case by case but in general, will depend on three key factors:

• Whether the case was charged as a misdemeanor or a felony; and
• Whether the offense was chargeable with time in jail or prison; and
• Whether probation was included in the sentence and has been completed.

Because there a lot of legal terms that people may not be familiar with, this section will provide definitions and highlight several key components common to most post conviction options. The most common post conviction relief options include: sealing and destruction of records, expungement, felony reduction, and certificates of rehabilitation and/or pardon.

Misdemeanors vs. Felonies: When evaluating a case for the first time, a criminal defense attorney will first want to know whether the prior offense was charged as a misdemeanor or a felony. Ultimately the difference between a misdemeanor and felony comes down to the severity of the offense and the punishment that can be imposed.

Misdemeanors typically involve fines and are punishable by not more than a year in county jail. They are considered less severe than felonies. Felonies, by definition, are punishable with a year or more in state prison. While any time behind bars is difficult, technically county jail is considered less severe than prison and is reserved for less serious offenses.

Probation Requirement: In addition to jail or prison, most crimes include a period of time when a person is restricted from doing certain things. In general, probation is commonly included as a condition of conviction in nearly all misdemeanor crimes and some felonies. Probation can be either formal (i.e. supervised by a probation officer) or informal (it is up to the individual to comply with the terms). In many cases even something seemingly small, like getting a traffic ticket while on probation can be enough to cause the original judge to impose additional penalties such as additional jail time. Post conviction relief is not generally available until the probationary period is over.

Typically felonies attach a prison term and parole. There are different post conviction options for parolees including certificates of rehabilitation and/or pardons. However, certain felony offenses are considered less serious, so the judge may have granted county jail time and probation. In these cases, misdemeanor post-conviction relief would be available.

Early Termination of Probation: Most post conviction relief is unavailable to individuals whom have not yet completed their entire probationary term, with certain exceptions. California penal code section 1203.3 allows a judge to modify or revoke probation or terminate probation on a case by case basis. This is an important aspect to any discussion on post conviction relief since expungement and other relief is generally unavailable if you are still on probation. Under PC 1203.3 a probationer can petition the judge to terminate probation early. Early termination of requires a skilled defense attorney to go before the judge and make an argument in favor of early termination.

Wobblers: Most offenses are clearly defined by the penal code as either misdemeanors or felonies. However, there are always exceptions. Certain crimes, referred to as “wobblers” can be charged by the prosecutor as misdemeanors or felonies. In some cases people may not remember the details of their prior convictions and laws may have changed over the years. As a general rule, county jail and probation are clear indicators that a crime was charged as a misdemeanor.

Common examples of wobblers include certain DUI / DWI offenses, drug possession, assault and domestic violence offenses. If a conviction of a wobbler offense includes county jail time – regardless of whether any actual time is served) – and probation, then the conviction is eligible for misdemeanor relief including sealing of records, reduction of felony to a misdemeanor and/or expungement. Straight felony convictions, on the other hand, would require an application to the governor via a certificate of rehabilitation or pardon.

As stated, felonies by definition are more serious than misdemeanors. In certain cases wobblers may rise to the level of a felony if certain aggravating circumstances are present, for example, when someone is actually injured. Straight felonies – those that are not wobblers – attach a specific prison term, and in most cases, there is a start and end date with a possibility of parole. Individuals convicted of felonies which were paroled, have stricter standards as they relate to the availability of post conviction options. Generally, in order to relieve the civil consequences of a prior felony conviction requires application of pardon or certificate of rehabilitation, which are more lengthy and involved than misdemeanor relief options.

A California criminal conviction doesn’t have to follow an individual through life, hampering opportunities for employment, education, housing, and other necessities. The experienced, caring defense lawyers of The Kavinoky Law Firm are experienced in every aspect of post-conviction relief, and will explore every option available to clean up an individual’s criminal record. Contact a skilled attorney today for a free consultation.

Hit-and-Run-Causing Death

Drivers who leave the scene of an accident in California can face hit-and-run charges even if they are not at fault. The severity of the charges depends on many factors, such as whether the accident involved property damage, injury, or death. Regardless of the circumstances, hit-and-run is a very serious charge that requires expert legal representation. The skilled defense lawyers of The Kavinoky Law Firm are experienced in every aspect of California hit-and-run cases, and will work very hard to protect the accused driver’s rights and freedom.

California Hit and Run Law

Leaving the scene of a fatal accident is an extremely serious charge in California. A driver convicted of hit-and-run causing death faces from three months in county jail to up to four years in state prison. The driver also faces a fine of up to $10,000, a one-year driver’s license revocation, probation, and possible vehicle seizure.

In some cases, a driver involved in a fatal hit-and-run accident can face even more serious charges such as manslaughter or vehicular homicide. And if alcohol or drugs were involved, the driver may face an additional charge of DUI / DWI or driving under the influence of drugs.

However, a hit-and-run charge doesn’t equal an automatic conviction – far from it. There are many effective defenses to a charge of leaving the scene of an accident. It’s important to remember that the prosecutor is required to prove his or her case beyond a reasonable doubt in order to obtain a conviction. That means the prosecutor has the burden of convincing all 12 jurors of the driver’s guilt. The defense is under no burden to prove anything other than to prove the prosecution’s case is faulty.

Hit-and-run cases involving death are extremely complex and technical, and typically involve a great deal of physical evidence. In many cases, the assistance of an experienced accident reconstructionist can uncover evidence overlooked by police that can help the defendant’s case.

In some cases, the defense may be better off negotiating a plea bargain rather than taking a charge of leaving the scene of an accident to trial. Plea bargains sometimes offer a satisfactory resolution to a hit-and-run charge involving death. It may be possible for the driver to plead guilty in exchange for reduced charges and/or punishment. In some cases, alternative sentencing may be available that can reduce or even eliminate a jail sentence.

A California Defense Attorney is Vital

There are many viable criminal defense strategies to a California hit-and-run charge involving property damage, injury or death. The experienced Criminal Defense Lawyers of The Kavinoky Law Firm are skilled in every aspect of defending charges of leaving the scene of an accident, and will develop a proven defense strategy designed to safeguard the driver’s rights and minimize the consequences. Contact them today for a free consultation.

In California, a driver who leaves the scene of an accident where someone is hurt can be charged with hit-and-run causing injury. Leaving the scene of an injury accident is a serious charge that requires an expert defense lawyer to safeguard the driver’s rights. The skilled defense attorneys of The Kavinoky Law Firm have extensive experience in defending California hit-and-run cases, and will fight hard to minimize or even eliminate the consequences of a charge of leaving the scene of an accident that caused bodily injury.

A driver can be charged with hit-and-run after leaving the scene of an injury accident even if he or she wasn’t at fault. California law requires every driver who causes or is involved in an accident to stop and exchange information. Hit-and-run is an extremely serious charge, even if the accident involves only property damage. If the crash results in a hit and run causing death or serious injury, the driver faces severe consequences that can include prison time.

A driver convicted of hit-and-run with injury in California faces repercussions that may include heavy fines, a driver’s license suspension, probation, and possibly even seizure of the driver’s vehicle and jail time. If someone other than the driver suffers serious permanent injury, a convicted hit-and-run driver faces up to four years in prison and a fine of up to $10,000.

However, there are many ways to soften or eliminate the consequences of a California hit-and-run charge. It’s possible to fight and win against a charge of leaving the scene of an injury accident with the right defense lawyer at the driver’s side. Keep in mind that the prosecutor has the burden of proving the driver’s guilt beyond a reasonable doubt. If just one juror isn’t convinced of the driver’s guilt, there can be no hit-and-run conviction.

Another option that can help the driver avoid jail time in a California hit-and-run case is alternative sentencing. In many cases, it may be possible to substitute community service, freeway cleanup, electronic monitoring, or another sentencing alternative for jail. Whether alternative sentencing is available depends on many factors, including whether the offense was charged as a misdemeanor or a felony, and whether alcohol or drugs were involved.

Prosecutors in California hit-and-run cases sometimes offer a plea bargain, where the driver pleads guilty in exchange for reduced charges and/or punishment. Sometimes inexperienced defense lawyers press their clients to accept a deal merely to resolve a case quickly, but a plea bargain should be just what the name suggests – a good deal for both the driver and the prosecutor.

In some cases, it’s possible to negotiate what’s known as a civil compromise, where the accused hit-and-run driver agrees to pay for any property damage and/or medical expenses incurred by the other party as a result of the crash. If a civil compromise is approved by the court, the driver will face no criminal charges for leaving the scene of the accident as long as reimbursement is accomplished.

Regardless of the circumstances surrounding a California hit-an-run charge, it may be possible to decrease or eliminate the repercussions. The knowledgeable defense lawyers of The Kavinoky Law Firm are experienced in every aspect of California hit-and-run law, and will fight to protect the driver’s rights and push for a favorable outcome. Contact a skilled defense attorney today for a free consultation.

Sealing and Destruction Of Records (California Penal Code 851.8)

With more sophisticated computers and increasing laws designed to be tough on criminal offenders, privacy is fast becoming a concern for everyone; especially individuals with a criminal record. While they say we learn from our mistakes, no one wants their criminal records public. Depending on the circumstances, it may be possible to get criminal records sealed. Once records are sealed it limits public access. In these cases, the offense is deemed not to have occurred and the records are subsequently destroyed. The skilled California defense lawyers of The Kavinoky Law Firm are experienced in all aspects of petitioning to have criminal records sealed and destroyed.

Sealing and destruction of records is a good option in certain cases and more difficult in others. Under California penal code 851.8, an innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of “factual innocence.” A finding of factual innocence is generally initiated by motion and requires a judge’s approval.

In general, someone is deemed to be factually innocent if no reasonable cause exists to believe he or she committed the offense. The procedure for obtaining a certificate of factual innocence vary depending on whether formal charges are filed, but the result is the same: All records relating to the arrest and charges must be sealed for three years and must subsequently be destroyed. The arrest is deemed never to have occurred.

Often time arrests occur and the person is released and no formal charges are filed. In these cases, the arrestee can petition for a finding of factual innocence to have the arrest records sealed.

When charges were filed but the case was dismissed, a petition for a finding of factual innocence can be made, but it’s in the discretion of the court and the district attorney to grant relief. When a trial results in an acquittal, the judge may find the person factually innocent and order relief.

There are specific evidentiary and timing issues which are important to maximize a successful finding of factual of innocence. Anyone looking into relief under penal code 851.8 should consult with a California criminal defense attorney.

Even in cases where sealing and destruction of records is appropriate, certain exceptions apply. Transcripts of court proceedings, published appellate opinions, and any records relevant to pending lawsuits are exempted. Records will not be destroyed if the conviction is on appeal, jail time was never served, fines unpaid, probation is incomplete, or there is a bench warrant.

There are certain cases when relief under Penal Code 851.8 can be very useful, including:

• Juvenile misdemeanor arrest and conviction records
• Marijuana arrests and convictions
• Drug diversion agency records

Juvenile misdemeanor arrest and conviction records: Sealing of records is often awarded in cases involving minors. The arrest records of a minor may be sealed if he or she was released for lack of probable cause; the juvenile court dismissed the case, or the defendant was acquitted.

This section does not apply to arrests for sex, drug, or traffic offenses. If the court makes the finding required for relief, the records will be sealed and the proceedings will be deemed not to have occurred.

It is rare for a person under age 18 to be convicted of a misdemeanor in adult court but when it does happen, Pen Code §1203.45 provides for the sealing of such records

Marijuana arrests and convictions: In general, while sealing and destruction of records requires court approval, cases such as minor misdemeanor marijuana convictions will be automatically sealed. Records of marijuana arrests and convictions are automatically destroyed two years after the arrest or conviction in cases involving simple possession.

Drug diversion agency records: PC 851.8 provides that drug diversion agency records will be sealed and destroyed.

Employers generally cannot ask job applicants about arrests or detentions that did not result in conviction; convictions for which the record has been ordered sealed or expunged; expungements or as noted above, or participation in a diversion program.

Applicants for peace officer and health care positions are exempted from this rule, and applicants can be asked about arrests for sex or drug offenses. Professions involving young children have also been found to require disclosure for arrests involving sex or drug offenses.

Sealing and destruction of records is a viable option after many California criminal convictions. The experienced California criminal defense attorney of The Kavinoky Law Firm can determine whether an arrest or conviction can be sealed and destroyed. Contact them today for a free consultation.