Clerk’s Arraignments for Misdemeanors in California Criminal Court

In California, arraignments are generally the first time that a criminal defendant makes their appearance in court. Every arraignment is slightly different because no two cases and no two courts are exactly the same. If you are facing misdemeanor criminal charges in California and want to learn more about what happens at an arraignment, I have video on my Youtube channel about it. Depending on the particular court you’re in, the judge you’re in front of, etc, you may have the option of doing something called a Clerk’s Arraignment instead. It is what it sounds like — you get arraigned in front of a court clerk (i.e. a non-judge who just works for the court) as opposed to an actual judge or court commissioner. Some of you might be going ‘Whoa, what? Is that legal?’ The answer is that it is, but – in my experience at least – it is not common. I would guess that I encounter it less than 10% of the time on misdemeanor cases. All of those are on cases where the defendant has his or her own attorney (i.e. not the public defender). I have never seen a Clerk’s Arraignment done in a case where the defendant is appearing without a lawyer. If you have, leave me a comment down below. There are many reasons why a Clerk’s Arraignment might be done. One is speed. For the vast majority of misdemeanor cases, arraignment is routine and uneventful for an attorney to do. Additionally, misdemeanors are very common so it is not unusual for an attorney to wait in line for 45 or more...

Law School Help: California Criminal – Carjacking

I’m guessing a lot of you know what carjacking is — namely, the stealing of a car from another’s possession. I might be wrong, but I think carjacking started happening in the 1980s or so in California when those wanting to steal a vehicle realized that stealing a parked vehicle with no keys was rather difficult. Stealing a vehicle that had been unlocked and started by the owner was much easier and all the thief had to do was threaten the owner. Anyway, in California, the criminal offense of carjacking is defined in California Penal Code section 215(a) which states: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Clearly this is a mouthful, but if you break it down, the basic elements of a carjacking are: the taking by means of force or fear of a motor vehicle that is in the possession of another, including a passenger of the motor vehicle from the person or the immediate presence of that other, against the will of the possessor with the intent to deprive the possessor of their possession of said vehicle Each of these elements could, in theory, be the source of disagreement between the prosecution and the defense. For instance, the prosecution might say the vehicle...

California Retaliatory Eviction (CA Civil Code section 1942.5)

Retaliatory eviction is one of the things that often arises when the relationship between a landlord and a tenant in California sours. As you can perhaps guess from the name, the landlord is evicting the tenant in retaliation for something the tenant did. As you should hopefully also be able to guess, the word “retaliation” implies a timeline — the landlord must evict the tenant for something they have already done. In other words, the tenant must do something first and then the landlord must evict them in retaliation. A tenant cannot claim the landlord is evicting them out of retaliation when the eviction came first and the tenant’s action came second. (True story: I once had a case where the tenant tried to do this.) The governing statute for residential retaliatory eviction in California is section 1942.5 of the California Civil Code. In this blog post, we’ll go over it. As usual, this post will just be an overview and will – by no means – be an exhaustive description. Please take a look at the full text of Section 1942.5 yourself or consult an attorney in your area regarding your particular situation. If you are in a commercial landlord-tenant situation, retaliatory eviction under Civil Code 1942.5 does not apply to you, but you may have an equivalent against retaliatory eviction under a 1981 California Supreme Court case called Barela v. Superior Court, 30 Cal.3d 244. Section 1942.5 of the California Civil Code basically establishes three categories of activity that could qualify as retaliatory eviction. A lot of stuff can qualify as retaliatory eviction, but not everything. In my experience,...

New York Statute of Frauds

In general, it is a good idea to have agreements and contracts in writing. A writing is generally more clear and less susceptible to jaded recollection than an oral agreement, for instance. In some instances, however, the law requires that an agreement or contract must be in writing in order to be enforceable. This requirement for a writing is called the Statute of Frauds. In California, the Statute of Frauds is in California Civil Code section 1624. In mid-2017, I made a Youtube video in which I went over California’s Statute of Frauds. I have a bunch of other videos on my Youtube channel as well. Most are California-focused because that’s where I practice primarily, but I am trying to add more New York videos. Due to New York Judiciary Law section 470, though, (see below), my New York videos are going to go over statutes and other publicly-available legal resources only. Anyway, take a look around the channel and subscribe. New York has the Statute of Frauds as well. The idea is the same — namely, that certain agreements and contracts must be in writing in order to be enforceable — but as is usually the case, the implementation varies from state-to-state. In other words, New York’s Statute of Frauds requires different agreements be in writing than California’s Statute of Frauds does. New York’s Statute of Frauds is codified in New York General Obligations Law Section 5-701. I’ll go over that section briefly, but I encourage you to take a look at the actual statute section in order to get a complete description of what agreements are covered....

New York Small Estate Affidavit Procedure

Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process. The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch. Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills. Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York...

California Will Drafting – Disinheriting Your Children

Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway. This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy. One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally. As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code. You left your child out of your will intentionally and that intention is apparent from the will in some way, You left property to the parent of the child instead of leaving the property to the child directly, or You provide for the child in some other way outside of your...