When You or a loved one is facing a Serious Problem You need a Serious Attorney

Facing an assault or battery charge? Assault and Battery are actually two distinct crimes and can be charged a number of ways. Assault is the willful commission of an act that by its nature would directly and probably result in the application of force to a person. Battery is a willful touching done in a harmful or offensive manner. The difference between an assault and a battery is that an assault is an act that might inflict a physical touching but a battery is the actual touching or infliction of injury. Assault does not require an actual touching or injury.

Crimes stemming from assault or battery can be charged as a felony or misdemeanor. Aggravating circumstances provide for particularized charges that may increase punishment and consequences such as if the act was committed through the use of a firearm or other deadly weapon (including a motor vehicle), if the act caused a serious injury or great bodily harm, or if the act was against a special class of person, such as a police officer, elderly person or child.

Conviction of an assault or battery charge can have serious consequences, including having a criminal record which will affect your eligibility to obtain or maintain employment, credentials, or licenses. It can also affect your voting and gun rights. Conviction of certain assault and battery misdemeanors can prohibit ownership of firearms for ten (10) years, while felony convictions carry lifetime prohibition from owning a firearm. The Law Offices of Vincent LaBarbera can explain to you your legal rights and available defenses to these charges.

It is not uncommon for people to be wrongly accused of domestic violence. False allegations are often made during a moment of emotional turmoil, out of jealousy, anger, or in the midst of a divorce. Accidents also occur, and some accusations of domestic violence involve the use of force in the exercise of a person’s legal right to defend themselves (self-defense).

California prohibits the use of force or threats of imminent harm against persons in intimate relationships such as a current or former spouse, cohabitant, fiancé, dating relationship, or parent of a common child. Penal Code § 273.5 provides that the willful infliction of “corporal injury resulting in a traumatic condition” upon one of the defined persons above, is a felony. It is a general intent crime, which means that it is committed as long as the act was “willful”. (It does not have to be “intentional”.) A related offense is the intentional and knowing violation of a protective order with or without resulting injury (Penal Code § 273.6(a), (b)). In other cases, such an incident may be charged as a misdemeanor battery.

The California legislature has crafted several exceptions to the rules of evidence to allow statements of alleged victims come into court as evidence even if you have a reluctant witness. This means that although the reporting party may have a change of heart, and no longer desires prosecution, the government can often proceed in prosecuting the case without their help.

A conviction of felony Penal Code § 273.5 carries a sentence of 2, 3 or 4 years in state prison. Misdemeanor battery against a spouse, cohabitant, etc. carries a sentence of up to one year in the county jail. If convicted, in addition to jail or state prison sentence, offenders are required to complete a batterer’s treatment program. Gun rights are taken away for both felons and misdemeanants involving domestic violence. Conviction of domestic violence offenses can have other serious consequences, including having a criminal record which will affect your eligibility to obtain or maintain employment, credentials, or licenses. The Law Offices of Vincent LaBarbera can explain to you your legal rights and available defenses to these charges.

Getting a DUI or DWI can be a life changing and costly experience. Although the offense is most often associated with driving under the influence of alcohol, you can also be arrested for driving under the influence of prescription or non-prescription drugs, marijuana, narcotics or street drugs. It is not a defense that you were legally entitled to use the drug or were prescribed the drug. Penalties and consequences for driving under the influence include harsh fines, potential jail time, drivers’ license suspension, installation of an ignition interlock device on your vehicle (and costs), alcohol/drug classes and education (and fees), increased insurance premiums, difficulties maintaining of obtaining future employment, professional licenses or credentials, and could include jail time. For second or subsequent convictions, lengthy jail sentences are not unusual. Many courts impose significant bail conditions for pretrial release after a driving under the influence arrest.

A person is under the influence if his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence. Even if you do not think there is a viable defense to your charges, you should have your case reviewed by our office prior to going to court. There are many challenges to a DUI arrest that can be made on constitutional grounds or against the forensic evidence gathered against you. In some instances, there is a possibility that the machine or testing methods used to obtain a blood-alcohol level is inaccurate or the results inadmissible in court. Even if you choose not to take your case to trial, we may be able to help you keep your license and minimize any period of suspension, avoid jail time, and minimize the impact of DUI on your life. The Law Offices of Vincent LaBarbera can explain to you your legal rights and available defenses to these charges.

Charged with drug possession or dealing? Federal, state and local law enforcement agencies commit significant resources to the investigation and prosecution of drug crimes, and drug sales charges remain both common and controversial in today's society.

To prove a drug sales charge, the prosecution must show that the defendant possessed a controlled substance, knew it was a controlled substance, and had the intent to sell it. Sometimes the quantity of the drug might be indicative of sales, but some quantities can also be argued are for personal use. Drug sales charges are sometimes alleged based merely upon the number of baggies or bindles or the type of packaging or manner that the drugs are stored. Intent to sell is often based on circumstantial evidence, such as packaging, scales, large amounts of cash, or the testimony of witnesses.

There are numerous charges related to drug sales. Possession with the intent to sell is a felony charge and is as serious as a charge of actual sale of a controlled substance. Transportation of drugs, even for short distances, is a felony offense, and is generally charged with the same code section as actual sales. Sale of drugs in certain areas, such as near drug treatment facilities or schools, carries enhanced penalties, as does the sale of drugs to a minor. Persons convicted of sales crimes are not eligible for diversion or the drug treatment program under Proposition 36 as an alternative sentencing option.

It is possible to successfully defend drug possession and sales charges. There may be insufficient evidence of sales. The search and arrest may not have been constitutional, the evidence may not have been handled properly, or there may have been police misconduct. Contact our office at (949) 662-1791 for a confidential consultation.

The Federal criminal code, known as Title 18, covers a wide range of crimes, from narcotics cultivation and distribution to fraud, embezzlement, and other so called "white collar" crimes. Federal cases are typically more complicated and are procedurally unique from state criminal prosecutions. From the initial detention hearing following an arrest or filing of charges through trial, the federal system can be a confusing and complex process.

In federal fraud or drug cases, the amount of loss or drug quantity becomes a critical part of analyzing the potential exposure of particular defendant has. The federal system is generally governed by the United States Sentencing Commission Guidelines, which is a points based system that allocates points for particular behavior, circumstances and criminal history which ultimately determines the amount of custody time a defendant will likely receive upon conviction of a crime. Although courts are not bound to apply the Guidelines, it must consult it and take it into consideration in determining an appropriate sentence. The sentence under the guidelines is calculated by determining the Offense Seriousness and Base Offense Level, adding or subtracting any Specific Offense Characteristics, and adding or subtracting any Adjustments. After that, a defendant’s Criminal History is factored in, and a Guideline Range is determined, which is a range of imprisonment. If atypical aggravating or mitigating factors exist, the court might “depart” or take a “variance” from the guideline range, sentencing a defendant above or below that range. It is imperative to have an experienced advocate on your side that can defend you in the federal arena with knowledge and expertise. Contact us today for a consultation at (949) 662-1791.

In 1988 the Legislature enacted the California Street Terrorism Enforcement and Prevention (STEP) Act, which added Penal Code sections 186.20 et seq, effective September 26, 1988. Several amendments to the STEP act were later enacted through Proposition 21, effective March 8, 2000. The Legislature has stated the intent behind the STEP Act is to eradicate criminal activity by street gangs “whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.”

Penal Code section 186.22 has three separate charging provisions. The first provision is contained in 186.22(a), and is a substantive offense for actively participating in and wilfully furthering felonious conduct by members of a criminal street gang. This offense can be charged as either a felony or misdemeanor and carries either 16 months, 2 years or 3 years in state prison or up to one year in the county jail. The second provision is an enhancement allegation contained in section 186.22(b) which is added to other criminal felony charges committed for the benefit of any criminal street gang with the specific intent to further criminal conduct by gang members. Depending on how the section is charged and the other crimes alleged, it can add anywhere from 2 years to a life term onto a sentence upon conviction. The third provision, contained in section 186.22, subdivision (d), is an alternate penalty provision, chargeable as either a felony or misdemeanor, for committing a public offense for the benefit of a criminal street gang with the specific intent to further criminal conduct by gang members.

A person charged with these offenses must aggressively defend against them. Often a person is charged with this crime is not or no longer a gang member, was not acting for the benefit of the street gang, or was not guilty of the other charges alleged. Contact our office at 949-662-1791 for a consultation for these serious charges.

Loan fraud is a crime in which the intent is to materially misrepresent or omit information on a loan application in order to obtain a loan or to obtain a larger loan than could have been obtained had the lender or borrower known the truth. Mortgage fraud is one of the fastest growing white collar crimes in the United States. Although we often read about mortgage fraud, these cases are also prosecuted in cases involving commercial, construction, business, personal and other loans as well.

This can be a complex and nuanced situation as oftentimes a consumer is led into committing loan fraud through predatory lending practices. Loan fraud may be perpetrated by one or more actors in a loan transaction, including the borrower, a loan officer or loan originator, a real estate agent, appraiser, a title or escrow representative or attorney; or by multiple parties.
In state cases, loan fraud is often charged as grand theft (Penal Code §487), or under the more specific statutes, for example, mortgage fraud (Penal Code § 532f) or construction loan fraud (Penal Code § 484b, 484c). In federal cases, loan fraud is typically charged under conspiracy and loan fraud statutes under Title 18 of the United States Code Annotated (see, for example, 18 U.S.C. § 1344, 18 U.S.C. § 1014.)

A person charged with these offenses must aggressively defend against them. Contact our office at 949-662-1791 for a consultation for these serious charges.

Proposition 64 went into effect on November 9, 2016 after passed by the voters. It establishes laws to regulate the cultivation, distribution, sale and use of marijuana. It invalidates some crimes for adults 21 years of age and over and reduces charges and penalties for adults 18 to 21 years of age. The initiative is retroactive, mearning that persons previously convicted of marijuana crimes can now go back and modify their previous convictions and sentences.

Proposition 64 modified the following Health and Safety Code sections: 11357, 11359, 11360. It also adds new sections 11362.1 through 11362.8.

Under Section 11361.8, a person can now go back under the new law and request resentencing, dismissal and/or sealing of their old case for a qualifying offense. Any conviction that is recalled and resentenced and reduced is changed “for all purposes”, which means that it can restore rights that were affected by the previous conviction. Marijuana convictions under the old laws can have serious consequences, including having a criminal record which will affect your eligibility to obtain or maintain employment, credentials, or licenses. It can also affect your voting and gun rights. The Law Offices of Vincent LaBarbera can assist you in cleaning up your record.

Professional licensing issues before the various governing state medical boards often involve “lifestyle issues” such as drug or alcohol use, criminal convictions, or “inappropriate behavior” or failing to meet reporting requirements. Cases involving these kinds of accusations can be complex and usually involve collateral consequences, such as subsequent criminal, civil or employment related actions separate and apart from the original board accusation. Mr. LaBarbera assists many different types of professionals, including physicians, accountants, real estate agents/brokers, nurses, automobile dealers, optometrists, chiropractors, teachers, and care providers. Agencies such as the California Medical Board,
California Board of Accountancy, California Department of Social Services, California Board of Optometry, Dental Board of California, California Board of Chiropractic Examiners, California Board of Nursing, California Department Of Corporations, California Bureau Of Real Estate typically hold hearings before the Office of Administrative Hearings and are governed by different rules of evidence outlined in the Administrative Procedure Act (APA), which is found in Government Code Section 11340, et seq.

Proceedings before the various state boards and licensing agencies involve strict and short time limits, so it is advisable to contact an attorney as you become aware of the investigations or accusations against you. Moreover, if you are a professional who has been accused of a crime or recently experienced a criminal conviction, most licensing authorities require you to report these events within a very short time frame. Contact the Law Offices of Vincent J. LaBarbera Jr., for more information about representation in professional licensing matters and Administrative Board Hearings.

The most serious charge relating to driving under the influence is that of second degree murder (Penal Code Section 187), based on an implied malice theory. This often occurs when the individual has a prior DUI conviction and had been formally warned of the risks of driving under the influence but commits a DUI again (this is commonly called a “Watson” admonition pursuant to the California Supreme Court case People v. Watson, (1981) 30 Cal.3d 290) or has attended a court approved DUI school. A second degree murder conviction carries a state prison sentence of 15 years to life. Sentence enhancements can lengthen the sentence under the particular circumstances of the case.

Under other situations, a defendant involved in a DUI causing death will likely be charged with vehicular manslaughter while intoxicated. This offense is divided into two categories: vehicular manslaughter while intoxicated (Penal Code Section 191.5 (b)), and vehicular manslaughter while intoxicated with gross negligence (Penal Code § 191.5(a)). “Gross negligence” involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury; AND a reasonable person would have known that acting in that way would create such a risk. This is a separate act apart from the decision to drive under the influence.

A person convicted of vehicular homicide involving a DUI is subject to a state prison sentence, and faces all the additional penalties and consequences of having a DUI conviction. In addition, the Department of Motor Vehicles will suspend or revoke your license depending on the offense.

A vehicular homicide involving negligence that does not involve driving under the influence can be charged under Penal Code Section 191.5(c) as either a felony or misdemeanor. The Law Offices of Vincent LaBarbera can explain to you your legal rights and available defenses to potential or actual charges.