Law Offices of Erik Steven Johnson

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In California, possession of a controlled substance, at one point, was a “wobbler” which means that the prosecutor had the discretion to charge it as either a felony or misdemeanor. Charing as a felony generally depended on the drug and other facts and circumstances surrounding the defendant’s arrest and prior criminal history. Since Proposition 47 passed, possession of a controlled substance is generally charged as a misdemeanor. Although a misdemeanor is not as serious as a felony, a conviction of a misdemeanor drug offense carries serious, long-lasting collateral consequences.

One of the most important aspects in defending a possession of a controlled substance charge is the actions the law enforcement officer who first came in contact with the defendant. It the job of a criminal defense attorney to review all discovery, look for mistakes, inaccuracies, inconsistencies, and even misconduct on the part of the law enforcement officers involved. It is not uncommon for the police to violate the law in regards to search and seizure.

Although there are police officers who follow the law, there are some who do not. A few of the more common violations that law enforcement officers make may include: entrapment, writing inaccurate police reports, misleading judges to obtain search warrants, and arresting people without probable cause. When criminal defense attorneys are able to identify police misconduct, it creates a huge problem for the prosecution and might lead to the suppression of evidence in the case. This could lead to a dismissal of the charges.

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Will I Lose My Child Because Of A Domestic Violence Charge?

An allegation of domestic violence creates a rebuttable presumption that the accused parent is “unfit” to have custody of his or her child and to have visitation rights. (See Family Code section 3011). Such allegations must be disputed early to preserve your parental rights.

A conviction for domestic violence may lead to loss of:

  • Physical and legal custody of your child
  • Loss of visitation or an order of supervised visitation
  • Stay-away orders
  • Requirements to pay the victim’s attorney’s fees and other costs
  • Mandatory parent counseling and therapy.

NOTE: An accusation of domestic violence may also be used as a factor to deny spousal support to the accused party in a divorce or separation proceeding. (Family Code Section 4325 and 4320(m)).
What happens in criminal court may have a direct impact on your divorce and child custody proceedings. Your criminal attorney needs to aware of all the potential consequences a conviction may in a family court proceeding to protect your rights as a parent.

Child support in San Jose is a family law issue that can greatly differ depending on the situation and circumstances of the parties involved. Support is a right enjoyed by the children involved in the family law proceedings. This means that once the court becomes involved it cannot be waived by the parents.

The court understands that child support orders have a significant impact on the finances of both households involved. Any time there change in circumstances of either parent involved, child support may be recalculated and a new order put in place. The calculation of child support in San Jose is based on the time each parent spends with the child or children and other guideline factors which are found in California’s Family Code. Even if the obligor parent is the unemployed or underemployed, the court may, in its discretion, impute an income. The court disfavors those that purposely avoid child support obligations.

If you are pursuing child support in San Jose or are already involved in a child support matter and are concerned that you are either paying too much or the other party is not paying enough, contact a family law attorney in San Jose. An experienced family law attorney can help you understand the process and may be able to assist you in putting together a compelling argument for why child support should be increased or decreased.

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As we approach Cinco de Mayo and Memorial Day we can expect a spike in DUI investigations and arrests. A major tool law enforcement uses is the sobriety checkpoint or “DUI roadblock.” As a general rule police may not stop a vehicle unless there is probable cause that the motorist committed a law violation. However, DUI checkpoints are an exception to this rule and can get the unwary driver rolled up into the criminal justice system.

My clients often ask me what their rights are when they get trapped into a sobriety checkpoint. You do have rights which you may and sometimes should exercise, but you should also use reason and good judgment to avoid further complicating an already uncomfortable situation.

First, do you have a right to avoid DUI checkpoints? Yes, in fact, you do and should have the ability to avoid a checkpointbefore you enter into it. Police are required to publicize the checkpoint in advance and must clearly advertise the roadblock with sufficient lights and signage warning approaching motorists that they may be stopped. However, once you enter the checkpoint, you have passed the point of no return and may not turn away.

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Posted on in DUI

Drivers in California often mistakenly believe that the law entitles them to decline or refuse to submit to a chemical test during a DUI investigation. While you may refuse to cooperate in the performance of pre-arrest field sobriety tests and even decline a pre-arrest breathalyzer, California law requires that you provide a blood or breath sample when arrested for suspicion of driving under the influence.

The law of implied consent states that every motorist who operates a vehicle in California tacitly agrees and consents to give a blood or breath sample when validly arrested for DUI. If you decline to submit to a blood draw or a chemical breath test you may be charged with a misdemeanor offense and lose your driving privileges for up to one year on a first offense.

However, the arresting police officer has to follow strict rules in the performance of any chemical test and his failure to do so could result in a violation of your rights. First, he must unequivocally inform you that: 1) you are under arrest for suspicion of DUI; 2) you must submit to a chemical test; 3) you may choose between a blood or breath test and 4) failing to submit to a test is a violation of the law and will result in a license suspension for one year or license revocation for two or three years.

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If you are charged with a crime, you should definitely consider hiring a lawyer. Misdemeanors are crimes that are punishable by less than a year in the county jail. Felonies are those crimes punishable by a year or more in the state penitentiary. When you are charged with either, a felony or misdemeanor, the consequences can be life changing. You likely have a lot of questions.

When you are arrested, charged with a crime, or tried for a crime, you are afforded certain rights. You definitely have the right to remain silent, and you should before talking to a criminal defense attorney. A criminal lawyer will review what you are being charged with and will discuss with you what the district attorney must prove beyond a reasonable doubt in order for a jury to find you guilty. In some circumstances a person may be guilty of a crime but not the crime that is being charged.

In addition to discussing the elements of the crime the DA must prove, a criminal defense attorney will discuss the potential punishments for the crime or crimes that you are charged with. The criminal defense attorney will review the facts and circumstances of your case and discuss any available defenses. Plea bargaining may also be discussed, wherein a reduction in the punishment is bargained for a guilty plea to a lesser offense or same offense with a reduction in the punishment that would be given if the defendant had been found guilty of the crime.

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Senate Bill No. 61 effectively extended DMV’s pilot Ignition Interlock Device program for Alameda, Los Angeles, Sacramento, and Tulare counties. The program was set to be repealed as of January 1, 2016. The bill extends the operation of the program to July 1, 2017. The pilot program extended by SB 61 “requires, as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for any violation of the above offenses, a person to install for a specified period of time an ignition interlock device on all vehicles he or she owns or operates.”

For the past few years there have been pilot programs for the ignition interlock device or IID, including Alameda county. These programs require the installation of an IID even upon a conviction for a first-time offense. Such a device must be installed on any vehicle that the defendant owns or drives and requires that he or she blow into the machine before starting the vehicle. The purpose of the device is to prohibit and discourage drunk driving, or in the case of the ignition interlock device, prohibit driving with any measurable amount of alcohol. Many counties require the installation of an IID on a third or even sometimes second offense, but it is mandatory for a first offense in the pilot counties. The DMV will require it for up to two years on a second and third offense.

However, earlier this year the Department of Motor Vehicles released a study where they concluded that there were no real changes in the volume of first, second and third time DUI violations post implementation of the pilot programs. In fact the DMV concluded that the DUI rates were nominally the same in those counties pre-implementation. Thus imposing an installation of an IID has little deterrent effect, which is the real purpose of the program and the device. So in other words, even where there is a dramatic increase in the use and installation of ignition interlock devices on first offenders, there is no associated reduction in the number of first and repeat offenses.

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A San Jose man is charged with robbery and assault with a deadly weapon after he ran the victim over with a vehicle. According to the Mercury News, the man stole the victim's purse and tried to make off in a car. The victim attempted to retrieve her property and reached into the passenger side window and was subsequently dragged for 300 feet. The defendant then allegedly backed up over the woman.

Felony robbery is a serious crime and strike offense. This defendant will be charged with robbery and assault with a deadly weapon. Other likely charges may include felony aggravated battery and attempted murder if the man intentionally ran over the woman with the car.

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Sexual battery charges have in fact been filed against Forty-Niner Ahmad Brooks. The Santa Clara County District Attorney filed misdemeanor charges against the football player, to which he has pleaded not guilty.

The sexual battery allegations stem from an incident at former Forty-Niner Ray McDonald's San Jose home in December of last year. Both men are alleged to have sexually abused a woman at the home while she was unconscious due to alcohol intoxication. McDonald has been indicted on felony rape charges and pleaded not guilty last Friday.

Brooks is facing misdemeanor charges of sexual battery. California Penal Code section 243.4 prohibits the offensive touching of the intimate part of another person for the purpose of sexual arousal, gratification or for the purpose of physical abuse. It is punishable up to one year in county jail and a lifetime requirement of sex offender registration.

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Assault & battery charges have been filed against three San Jose men that stem from an attack on September 14, 2015 at Levi Stadium . Prosecutors have filed felony assault in a case that they alleged caused great bodily injury to the victim.

The assault & battery claim is alleged to have taken place at a Monday Night Football game between the Forty-Niners and the Minnesota Vikings on September 14. The victims of the assault was a fan wearing a Vikings jersey and an 18-year old security guard. One of the victims lost consciousness after a blow to the head.

The suspects fled the scene but were later identified through videos posted on various social media sites and ticketing information provided by stadium officials. An underage female suspect was also arrested by police. The Mercury News reports that that the fight began with taunting and team rivalry type of bantering. The victim was then tackled and repeatedly hit in the head. A security guard unsuccessfully attempted to break up the assault and was injured in the process.

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Warrants were issued for three Santa Clara County Correctional officers related to the murder of an inmate. The officers were arrested on September 3, 2015 and according to the Mercury News the District Attorney is charging the men with murder.

Charging murder is an unprecedented move by prosecutors, and may be the first time in Santa Clara County. It is alleged that the victim was mentally ill and was assaulted by the officers during an inspection of the man's cell at the Main Jail. The victim was found naked, battered and lacerated, and later succumbed to internal bleeding.

Further reports indicate that the inmate was found heavily bruised and slashed and appears that the man was the victim of blunt force trauma at the hands of the San Jose correctional officers.

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Federal prostitution charges have been filed against Mountain View resident Eric Omuro. Nicknamed “Red,” criminal defendant Omuro is the alleged operator of two websites known to facilitate prostitution. The website “myredbook” and “SFRedBook” are now infamous sites where prostitutes could advertise for sex services. Much in the way craigslist works, a prostitute could post an advertisement on one or both websites detailing her services, along with pictures of herself. Men could then visit the site, peruse the various advertisements and contact the prostitutes. There were even VIP sections where men would pay for greater access to sexual services.

The prostitution indictments came down sometime last month, according to the Mercury News. Omuro and his co-defendant are each out on bail, which reportedly is $500,000. The federal indictments accuse the defendants of facilitating prostitution through the internet and mail and further allege money laundering in the amount of $5 million. As a condition of his release Omuro is prohibited from accessing the internet. The co-defendant may have limited access to the web but may not have contact with anyone associated with the websites, including former customers and advertisers.

Omuro, who has been called the “mastermind” of the alleged prostitution websites, was arrested after he fled from authorities. The FBI has shut down the websites and seized the domain names. If convicted Omuro will face a forfeiture of the $5 million he is alleged to have profited. He is being prosecuted under federal racketeering laws which call for civil forfeiture and a prison commitment.

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Felony DUI (driving under the influence) and felony manslaughter charges have been filed against a 23 year old resident of Gilroy, California. Anthony Imbronone was driving his 1997 Ford Mustang with four other passengers when he lost control and ran the vehicle into a drainage ditch. According to the Mercury News, all four passengers were killed as a result of the accident.

DUI related vehicular manslaughter may be committed with gross negligence or without gross negligence. Gross vehicular manslaughter is a felony offense and carriers a prison term of four (4), six (6) or ten (10) years in the state penitentiary and loss of driving privileges. DUI related vehicular manslaughter without gross negligence is an alternative offense (or a wobbler in legal parlance) which can be charged as a misdemeanor, punishable up to one year in county jail or as a felony punishable up to three (3) years in state prison. A DUI related death can be charged as murder, if the offender has a prior DUI and was properly advised that a subsequent offense could be charged as murder if someone dies as a result of the drunk driving. This is referred to the Watson-Murder advisement.

Of course it must be shown that the driver was “under the influence” at the time of the accident. In the Gilroy case there is no report of what the defendant's blood alcohol was, but even without alcohol, he could still be charged with non-DUI vehicular manslaughter. Mr. Imbronone remains in custody at the Santa Clara County Jail with bail set at $250,000.

Recently, burglaries have been prevalent in the residential areas of San Jose. Last week, a San Jose teenager was been arrested after he was caught on a home surveillance video. The home surveillance video caught the teenager attacking the residents, including two women protecting a baby.

Burglary is a crime on the rise in some parts of San Jose. Particularly hard hit have been the Almaden Valley and Evergreen neighborhoods as police are stretched thin and being replaced by Community Service Officers or CSOs. Some burglars have become more brazen, entering homes at night they know are occupied.

In this case the Mercury News reports that the suspects broke into an Evergreen home and searched the home up and down. Two residents were at home and locked themselves in a bedroom. They had a young baby with them. The Mercury further reports that the suspects (one a teenager) attempted to break into the room, armed with knives. They were able to punch a hole in the door and made threats to injure the residents. They also disconnected the landline telephone to the home.

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Misdemeanor brandishing charges have been brought against a San Mateo County Sheriff's Deputy. The Mercury News reports that the District Attorney decided to charge the deputy with misdemeanor brandishing after a confrontation between the deputy and a custodian in a Redwood City courtroom. The courtroom was closed to the public at the time.

Brandishing is a serious allegation for any law enforcement officer. According to witnesses the deputy and custodian got into an argument regarding the recent murder of a South Carolina police officer. The custodian alleges that the deputy unholstered his side-arm in a threatening manner. The Mercury reports that the deputy informed the District Attorney that he was merely inspecting his firearm. Nevertheless the District Attorney made the decision to file charges against him.

Gun brandishing charges such as the one this deputy is facing (Penal Code section 417(a)(2)) carriers a term of up to one year in county jail. Different than many other misdemeanors, this charge carries a mandatory minimum term of three months, and does not qualify for jail alternatives, such as community service or work release. A conviction may also ban the deputy from owning or possessing a firearm.

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A man accused of assault & battery against a pizza delivery man pleaded no contest this past Wednesday. The San Mateo County Superior Court accepted the plea from the man, who calls himself the “Beloved Reaper,” who has also been convicted of misdemeanor criminal threats. No motive or explanation for the attack was ever been explained.

Assault & battery are crimes that can be misdemeanors or felonies. In fact assault and battery are two crimes and may be charged separately. Simple battery is the harmful or offensive touching of another person and can be found in Penal Code section 242. Assault is the lesser included offense of battery and is defined as the unlawful intent to commit a harmful or offensive touching. Stated more simply, assault is the attempt to commit a battery.

According to the Mercury News, the Beloved Reaper, also known as Richard Montgomery Ines, is accused of throwing a paint can at the victim followed by threats that he was going to kill him. When the victim exited his vehicle the defendant pulled out a BB gun and repeated his desire to kill the delivery man. The Mercury also reports that the defendant threatened other motorists and passers-by. He kicked a police officer while being arrested in an attempt to resist.

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Locally known street vendor Francisco Juarez was fatally struck by a DUI driver, this past weekend. Twenty-five year old Marco Chamale was arrested Saturday for driving under the influence and manslaughter charges for causing the accident that resulted in the untimely and tragic death of forty-year old Juarez. Juarez was selling fruit with his wife, who was also struck by Chamale, at the corner of South White and Mt. Vista in East San Jose.

A DUI that leads to a death of someone is typically charged as gross vehicular manslaughter while intoxicated. California Penal Code section 191.5 governs this crime and calls for a punishment of four to ten years in California State Prison. (See Penal Code section 191.5(a).)

In this case, the Mercury News reports that the defendant rear ended another vehicle, then jumped a curb hitting both Francisco and his wife. The car continued on and slammed into a third vehicle, in what appears to be an attempt to escape. Chamale was arrested at the scene and remains in custody with bail set at $250,000. There are no reports of his blood-alcohol level or BAC. A street-side memorial has been set-up by family and friends of Francisco marking the spot where the accident took place.

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Posted on in DUI

People accused of a DUI have a right to a hearing with the Department of Motor Vehicles (DMV) to challenge the automatic suspension of their driving privileges. These are administrative hearings, independent and separate from the criminal case. The hearing officer is responsible for determining several issues: 1) whether there was probable cause for the vehicle stop, 2) whether the motorist was advised of the implied consent laws and submitted to a chemical test, 3) whether the motorist was driving with a blood alcohol content of .08% and 4) Whether there are any defenses. However, one hearing officer took her responsibilities to a new level, by accepting bribes from lawyers in order to set the license suspensions aside.

DUI suspensions are taken very seriously by the DMV. However, Hearing Officer Alva Benavidez recently pleaded guilty in San Diego Federal Court, admitting that she set aside DUI suspensions in exchange for bribes. She pleaded to one count of conspiracy to accept bribes.

Among the items she received in order to look the other way were designer purses, sunglasses and cash, mainly from certain, and so far un-named attorneys. According the UT San Diego News, Benavidez admitted accepting bribes from six attorneys amounting to approximately $5,000 in money and merchandise. Benavidez worked for the DMV since 2000, but recently quit her job in the wake of the bribery investigation. She has not yet been sentenced, but faces up to five years in federal prison. She is set to be sentenced on April 20, 2015.

A jury convicted a man of DUI related vehicular manslaughter in a tragic but now infamous Pebble Beach case. According to KSBW.com news, thirty-two year old Stuart Elder was found guilty of causing the death of Sharon Daly and Linda Larone while driving his own vehicle while intoxicated. Elder's girlfriend, a passenger in his car, was seriously injured in the accident.

The jury concluded that Elder was driving his vehicle with a blood alcohol content near or at .17% and that he caused the accident that resulted in the death of two people and the injury of a third. They heard testimony that the defendant had been drinking wine earlier in the day at the annual Pebble Beach Food and Wine Festival. Officers testified that he operated his Cadillac Escalade at three times the posted speed limit when he lost control, crossed into oncoming traffic and collided with the victim's vehicle.

DUI related vehicular manslaughter requires a finding that the defendant was driving impaired as a result of alcohol intoxication and that the defendant committed a law violation or an omission of a duty while driving. In this case the defendant was driving with a blood alcohol content at .17% (more than twice the per se legal limit) and was driving in excessive of the basic speed law.

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A thirty five year old doctor in Merced County was arrested for certain sex crimes, including the installation of a camera in a bathroom and possession of child pornography. The pediatrician was placed on administrative leave in the wake of the arrest and remains out on bail.

The sex crimes that the doctor has allegedly committed are violations of Penal Code section 647(j) and section 311.11. Section 647(j), sometimes referred to as the “Peeping Tom” statute is the prohibition of installing concealed cameras in order to secretly record the intimate body parts of another person. Section 311.11 is the possession of pornographic images of minors under the age of 18.

According to the Merced Sun Star, the pediatrician is alleged to have installed a small camera inside a unisex bathroom, hidden in a small flower arrangement. After the arrest police searched the doctor's home and discovered sexual images of children. It is not known whether the images collected from the recording device contained images of children as well.

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