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Criminal Defense | Drunk Driving | Military Law

Thursday, July 16, 2015

Changes In The Law Make It Easier Than Ever To Get A Domestic Violence Case Dismissed

domestic violence lawyer orange countyPreviously, if a victim of a Domestic Violence case refused to testify against their spouse they could be arrested, held in contempt and incarcerated. Although this almost never happen the threat of it was enough to cause spouses who might not otherwise have testified to testify.

Then the California legislature passed California Civil Procedure (CCP) Section 1219(b). That law prohibited arresting or incarcerating victims of Domestic Violence or Sex Crimes for refusing to testify. Although the law does not prohibit the victims being held in contempt, it would appear the only punishment not prohibited is a fine.

As such, a spouse can refuse to testify against a Defendant charged with Domestic Violence and then take the stand and refuse to testify and only face a fine. [A spouse electing not to testify may want to consult with their own lawyer].

However, this does not mean the case is automatically dismissed. The Prosecution can still introduce statements of the victim that are deemed “excitable utterances” that incriminate the Defendant. Usually these statements are only admitted when the victim is describing what is happening to them to the authorities in an effort to get their assistance. These statements often occur during the “911 call” as the victim is frantically asking for help. However, outside of the victim (or another witness) describing an emergency situation as it is happening, these statements are hearsay and not admissible if the victim or witness has refused to testify or is unavailable. (See Washington v. Davis, 547 US 813 (2006), Crawford v. Washington 541 U.S. 36 (2004), Sixth Amendment, US Constitution)

In addition to CCP 1219(b) the holdings in Washington v. Davis, Supra, and Crawford v. Washington, Supra, have firmly established the right of a Defendant to be able to confront his accuser in court and ask questions of them pertinent to their accusations. Previously, especially in Domestic Violence cases in California, many statements of the victim could be introduced against the Defendant without the victim having to appear in court and be confronted by the Defendant. As such, the standard for admitting statements in court without the speaker being subject to cross-examination is now very high which benefits the Defendant. Also, while Domestic Violence cases have been notoriously difficult for the prosecution to pursue, these recent developments in the law have made them even more difficult to pursue to the benefit of the Defense. Call Mr. Will Bruzzo today to discuss your Domestic Violence case (714) 547 4636.

Criminal Law Updates by the Law Offices of William W. Bruzzo.

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Monday, July 13, 2015

Mexican Drug Kingpin El Chapo Escapes Through Tunnel Under Prison

el chapo escapes prisonMexican Sinaloa cartel leader Joaquin “El Chapo” Guzman escaped from the Altiplano Maximum Security Federal Prison over the weekend. The prison was designed to house high profile criminals and had been reviewed by international agencies in order to verify that the facility could securely hold the drug lord. He had been constantly monitored by video cameras and the last security video footage was on Saturday the 13th, before he stepped into the prison showers. Guards noticed his cell was empty from the video feed and went to check the showers. The showers were empty and there was an opening on the floor with steps down a 13 ft. vertical shaft that lead to a tunnel. The height of the tunnel was sufficient enough for Mr. Guzman to walk upright through the almost mile long passageway. It was properly ventilated and illuminated with electricity. The end of the tunnel led to a construction site located in the middle of a field. The structure was made up of cement blocks and empty except for a stove and some clothes. Nearby residents explained that the house was built within a year and very quickly. One report says that it was an illegal construction.

Once authorities realized Mr. Guzman had escaped, they closed roads and airports, including Toluca International Airport. Mexican authorities informed border officials within Guatemala of the escape and provided a copy of Mr. Guzman’s photo. Media outlets have reported that some believe Mr. Guzman must have had assistance by people high up in the prison. Some guards have been sent to Mexico City for questioning after the escape. Online articles explain that the Sinaloa cartel has a lot of experience in building drug smuggling tunnels and with Mr. Guzman’s wealth, funding an escape would not be a problem. This is the second time Mr. Guzman has escaped from prison. He escaped in 2001 from a Jalisco prison and had eluded authorities until 2014. He was recaptured in Mazatlán by Mexican authorities. The U.S. has expressed its future cooperating in helping the Mexican government to find “El Chapo”.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636

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Military Discharge Without Board Hearing

military discharge 6 yearsIf you are being separated from any of the military branches for positive urinalysis, a pattern of misconduct or commission of a serious offense you are not entitled to an Administrative Separation Board UNLESS you have been in the military for at least 6 years.

As such, the Command can decline to prosecute in a court-martial and decline to give you a hearing at a Board and still separate you without ever having to prove the case against you or show any proof you committed an offense. In practice, many Commands give the service member a board even if they have less than 6 years of service but that puts the service member at the whim of the Command or subject to demands on the unit’s resources.

Most E-1 through E-4 have not been in the military for 6 years so they are particularly vulnerable to this rule. However, in order for the Command to remove someone without a court-martial or a Board they must advise the service member of their intention and give him/her 5 days to submit written statements for consideration by the Command. By separating the individual in this matter without any sort of hearing the worst discharge the individual can get is a General Discharge Under Honorable Conditions. Unfortunately, the service member will lose the GI Bill Education Benefits with this discharge.

The advisement given to the service member must state the following or something similar in writing:

“(Date): I have been informed by my separation authority that I may receive a General (Under Honorable Conditions) characterization of service upon release from active duty based on (Act of Misconduct) This behavior is a significant departure from the conduct expected of a (Service member) and could be the basis for involuntary separation in accordance with (Pertinent Sections of Separation Manual of the particular branch) I was advised of my right to seek legal advice and to submit matters for separation authority’s consideration and that such matters may be submitted within 5 working days after acknowledgement of this notification. I wish (to) (not to) submit matters for consideration. (MCO 1900.16, Section 1004.)

If the Command fails to give this advisement and separates the individual without a court-martial or board hearing with less than an honorable discharge they have failed to follow procedure and the discharged individual should apply to have his discharge upgraded or request a correction of the military record.

Attorney Will Bruzzo, a sworn and certified military lawyer, recently had a case where the client refused Non-Judicial Punishment (Article 15) and demanded court-martial on a positive urinalysis; the Command withdrew the court-martial request (probably because of costs and time that would be spent by the unit putting together a court-martial) and told the service member he would be administratively separated. However, the Command never got around to putting a board together and tried to separate the individual without a board by giving the advisement above. However, there was some question whether the service member had actually knowingly ingested a controlled substance as the positive urinalysis came back for a non-traditional substance. As such,
Mr. Bruzzo submitted matters in consideration which included a sworn letter from him and a toxicologist challenging the reliability of the urinalysis result. As a result the Command gave the individual an honorable discharge preserving his benefits to include the GI Bill.

Mr. Will Bruzzo has more than 20 years of experience in military law matters and the Uniform Code of Military Justice (UCMJ) in addition to being sworn and certified as a military lawyer. Please contact him with any military law question at (714) 547-4636.

Military Criminal Law Updates by the Law Offices of William W. Bruzzo.

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Thursday, July 9, 2015

California Law Will Authorize Videotaping of Police by Civilians

civilian filming police legalThe California Assembly has just passed a law authorizing civilians to film police in public while police are arresting someone or otherwise working. The bill (SB 411) heads to Governor Jerry Brown’s desk where he is expected to sign it.

While there was no law prohibiting videotaping of police arresting people, the California legislature wanted to make sure it was clear that videotaping of police in a public place is legal and that the police cannot stop a person from recording an arrest or other police action.

This law no doubt arose out of recent video tapings of police not only engaging in misconduct but in at least one situation a South Carolina police officer has been charged with murder for shooting a man in the back who posed no threat to him. In that case Officer Michael Slager shot Walter Scott eight times in the back. Prior to the video surfacing, Officer Slager claimed that Mr. Scott reached for his stun gun, but the video recorded by a random passerby, showed Mr. Scott never engaged in any violent conduct with the officer and was running from the officer when he was killed.

In a more ambiguous case Eric Garner was selling cigarettes on the street in New York without authorization; when he resisted arrest several police officers tried to wrestle him down which included putting him in a choke hold. Unbeknownst to the police, Mr. Garner suffered from a breathing condition that was exacerbated by the scuffle and he died.

To add to the disturbing nature of these events in each case the victims were African American and the police for the most part, are all white. A slew of other incidents have occurred across the nation. Without video tape it is unlikely the public would have ever learned the disturbing manner in which these individuals died.

Notably, it is not only minorities who have been the subject of police misconduct as illustrated by the Kelly Thomas case in Orange County, California. There, several videos made by passing civilians showed police repeatedly striking Mr. Thomas, a mentally ill white man, in the head with metal flashlights while he was pinned to the ground. He died of his injuries. While the police involved were charged, a botched prosecution led to their acquittal on murder and manslaughter charges.

Society has an interest in holding police accountable and the images shown on videotape can be hard to refute. Many people were unaware of the frequency and nature of police misconduct until these videos began to surface. These videos will cause police to act more professionally and have also led many people to take more seriously future claims of police misconduct when there is no video present.

Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636

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Tuesday, June 23, 2015

Will Bruzzo’s Client Found NOT GUILTY of Sexual Battery in Orange County College Brawl

Orange County Assault Attorney
Orange County Criminal Defense Attorney Will Bruzzo successfully defended an Orange County college student accused of Felony Assault with Force Likely to Cause Great Bodily Injury (Penal Code Section 245(a)(4)) and Misdemeanor Sexual Battery (Penal Code Section 243.4 (e)(1)). If convicted the Defendant was facing lifetime sex registration under Penal Code Section 290 for the sexual battery charge. The trial occurred at the North Justice Center in Fullerton, California.

The facts of the case are that the Defendant allegedly grabbed the buttock of an adult female with his hand, one time at a college party. Sometime later the partygoers left the party and congregated together in an elevator lobby area. At that time the same Defendant who allegedly grabbed the buttock of the female then punched her boyfriend in the face one time. Friends and acquaintances of the first Defendant then all hit the victim-boyfriend one time each in the face except for one co-defendant who hit the victim in the back. Including Mr. Bruzzo’s client there were four co-defendants.

The victim allegedly lost consciousness, suffered cuts and bruises and two years after the fact claimed to suffer from headaches resulting from the attack. Despite the injuries Mr. Bruzzo managed to convince an Orange County Superior Court Judge to reduce the felony Assault to a misdemeanor per Penal Code Section 17b. Mr. Bruzzo believes the court’s actions here resulted in part out of the court’s frustration with the District Attorney refusing to alter or dismiss the sexual assault charge and instead insisting on lifetime sex registration for one buttock grab, which prevented resolution of the case.

Mr. Bruzzo’s client was originally facing a maximum of 4 years in prison for these offenses prior to the Assault being reduced to a misdemeanor.

What made this case difficult for the Defense is that the entire attack in the elevator lobby area was caught on high definition, high quality surveillance video. The video left no doubt as to the identity of the attackers or of the fact that none of the Defendants could rely on self-defense. The video revealed what appeared to be a ruthless, brutal attack by four individuals on one person. The video was so disturbing that when it was played for the jurors an audible gasp was heard from several of them.

Mr. Bruzzo made the strategic decision to have his client admit to the attack when he testified, while stating in mitigation that provocative words had been exchanged between them prior to the fight. There was essentially no issue as to the Assault charge since it was on video and the jury found the Defendant guilty of that charge. The biggest problem with the video as pertained to the second charge of sexual battery is that even though there was no video of the sexual assault, the video of the fight put the Defendant in a very unflattering light.

The Defense was aided by the prior statements of the sexual battery victim who first told the police that she had been grabbed several times, then changed her story to one time and finally at trial she stated that whatever she told the police originally must be accurate. The jury did not confer with the attorneys after trial but it could be that the sexual battery victim’s seeming inability to recall the events from her own memory undermined her credibility and lent strength to the Defendant’s claim that he never touched her buttocks.

Also, sexual battery requires that the Prosecution show the Defendant acted with the specific intent to arouse himself and/or seek sexual gratification with the offensive touching. It could be that the jurors could not say for certain whether the Defendant was trying to get the sexual battery victim’s attention or that the touching was incidental and not intentional. It could also be that the jurors felt that one touching of the buttock was not conduct which deserved a criminal charge. The latter would be jury nullification since the law allows for one touching to satisfy the law and permit a finding of guilty.

After less then 45 minutes of deliberation time the jurors found Mr. Bruzzo’s client NOT GUILTY of the Sexual Battery Charge. This is despite the very disturbing video of the Assault.

If you or a loved one is accused of Assault, Battery or Sexual Battery, contact the Law Offices of William W. Bruzzo for a free consult at (714) 547-4636.

Criminal Law Updates by the Law Offices of William W. Bruzzo

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Tuesday, March 17, 2015

Naked Man Parking Lot Rampage

According to the Los Angeles Times, a suspect was apprehended in Anaheim after he crashed naked through the back window of a car. The car was parked in an apartment complex lot and the incident was caught on surveillance video. The posted surveillance footage shows a woman getting into her car. Then the naked man is seen running toward the parked car she is in. He runs straight though the closed back window of the minivan next to her car. The man lands head first into the back window and almost half of his body makes it into the car. He falls out and rolls on the floor as the woman reverses out of her spot next to the minivan. The suspect gets up and runs toward the lady in her car and jumps on her car while she tries to drive off. As she drives away the suspect falls off the hood back onto the parking lot floor. Other people witnessed him getting up and leaving the scene. Anaheim PD found him and arrested him. He was taken to UCI Medical Center for his injuries. It is unclear why the suspect was acting in such an erratic manner. The most extraordinary thing about the case was that the whole incident was caught on video. Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636

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Tuesday, March 10, 2015

How to Remove an Arrest from your Record in California

removing arrest from record California

I have practiced law for over 20 years and during that time I have seen many people get arrested for a crime who end up never going to court because the District Attorney declines to file the charge. There are many reasons for this. The most common is that the police may have probable cause to arrest someone for a crime but once they submit their reports to the prosecution, the prosecutor may decide that they cannot prove the case beyond a reasonable doubt. This is because the police threshold for arresting someone (probable cause) is much lower than the threshold needed for a jury to find someone guilty (beyond a reasonable doubt). Regardless, while the individual does not face a charge in court, the arrest remains on their record.

The competitive nature of the current job market coupled with the ease with which potential employers can find information on potential employees makes it imperative to have as clean a record as possible. This may also include removing any arrests.

Fortunately, California has a process for removing arrests through Penal Code Section 851.8. This law directs that if a Petition under that section is granted the record of arrest must be sealed for three years from the date of the arrest and thereafter the record of arrest must be destroyed. The Petition is known as a Petition to Seal and Destroy Arrest Records and as a Factual Innocence Motion.

Penal Code Section 851.8 states that in order for this Petition to be granted the court must find that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. Reasonable cause as used here by the Penal Code is the same as probable cause and refers to the relatively low legal standard the police must have to arrest someone.

In practice however, in situations where the case was never filed, the District Attorney usually does not oppose these motions even if there was reasonable cause to believe the arrestee was committing a crime. I believe that the reason the District Attorneys rarely oppose these Petitions is that they see little sense in litigating the matter when a decision was already made that the evidence was insufficient to prove the case.

I have filed many Petitions to Seal and Destroy Arrest Records and in almost every case reasonable cause existed to make the arrest. However, in virtually every case I have handled the District Attorney either did not oppose the matter or the Judge granted my Petition over the District Attorney’s objection and I have won the Petition!

The rare nature of these Petitions and the indifferent nature of the District Attorney and the Court often plays a part in their being successfully granted. Notably, these Petitions can also be filed after a finding of Not Guilty by a Jury or Judge.

These Petitions should be filed within two-years of the arrest but in practice and in the interests of justice I have filed such Petitions many years after the arrest and they have still been granted.

Filing a Petition to Seal and Destroy Arrest Records is a two-step process. The Petition must first be served on the arresting police agency who also have the power to grant or decline the request. If they grant the request then the arrest record will be sealed and destroyed and the process is over. It is rare that a police agency grants such a request although it does occur. If the Police agency declines the request or does not respond within 60 days, then the Petition is filed with the court and the matter goes before a Judge. The District Attorney must also be served with the Petition and be permitted to weigh in on the matter. The Law Offices of William W. Bruzzo and William W. Bruzzo, Esq. have successfully represented many clients in successful Petitions to Seal and Destroy Arrest Records / Factual Innocence Motions. Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636.

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I represent criminal clients accused of everything from domestic violence and drunk driving to murder. I will not close a case until I believe that I have exhausted every possibility, whether it is a misdemeanor or a felony. If the facts support it I will take any case to trial; if the facts do not support going to trial, I will use all the relationships and knowledge I have developed with over  20 years of practice to negotiate the best result possible. I have managed to get "hopeless" cases dismissed just based on my knowledge of the local players (District Attorneys and Judges). An attorney's familiarity with the local system is invaluable to clients. I am that person in Orange County.

After practicing law for over 10 years I established my own firm in 2004 in Santa Ana, California. I am still in the same location.

Example cases

• People v. Arney (2011). I filed a motion to dismiss when the magistrate in the lower court kept out evidence over my objection. My motion was granted and the case was dismissed.

• People v. Willson (2010) I negotiated a dismissal of hit and run charges by getting the District Attorney to agree to dismiss the charges if the victim also agreed. The victim ultimately agreed and the case was dismissed.

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