The only discovery a criminal defense attorney is required to turn over is evidence the lawyer intends to use in their case in chief.   The broad general rule contained in the California Code of Civil Procedure that all relevant unprivileged information is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence has no bearing in criminal cases or investigations. Ms. Daly can engage in broad investigations without having to worry about uncovering evidence harmful to the client.  She can produce only beneficial information to a client’s civil attorney, law enforcement or the court.

Consider the possibilities when, parallel to a business dispute where a client and his former business partner end their business relationship.  The former partners are fighting over who owns customer lists, designs for future products, etc.  when one partner accuses the other of possession of child pornography on a work computer. Ms. Daly can have a polygraph conducted.  Polygraphs are not typically admissible in court.  Law enforcement, including many district attorneys, consider polygraph results when deciding whether or not to file charges.  Favorable polygraph results can positively influence civil court judges when a judge is trying to decide whether or not to issue an injunction the early stages of litigation.

Ms. Daly conducts the polygraph without telling the family law attorney the polygraph is going forward.  If the polygraph results are positive Ms. Daly turns the results over to law enforcement and to the family law lawyer.   If the results are unfavorable Ms. Daly never tells anyone about the polygraph.

Ms. Daly might have the same dad undergo a psychological evaluation.  Through years and years of research, psychologists have developed links between specific personality disorders common to people who commit offenses against children as well as many other kinds of criminal conduct.  These profiles are widely accepted by psychologists, law enforcement and courts.  Ms. Daly uses relies on a small group of highly respected forensic psychologists to perform her evaluations.  Different evaluators have different expertise.  While one psychologist is well suited to conducting evaluations where sex crimes are alleged, a different evaluator might be better suited when domestic violence allegations are made and third evaluator is best suited to accusation involving fraud or financial crimes.

If the evaluations are positive and the dad does not suffer personality disorders common to people who view child pornography the results are turned over to law enforcement and the civil attorneys.  On the other hand, if the results are unfavorable Ms. Daly has no legal or ethical obligation to produce them to anyone.  On the contrary, as a criminal defense attorney, Ms. Daly has an ethical obligation not to produce information which would be harmful to her client.  This is a win-win for the client. Ms. Daly can conduct an aggressive investigation and only produce those results which are favorable which can then be used by the civil attorneys.

In one case in which Ms. Daly’s client was accused of possessing child pornography in connection with a business dispute the government provided a mirror of her client’s hard drive.  Ms. Daly brought in an expert not only in computer forensics but also someone who advises foreign governments on computer and internet security.  Her expert was able to explain why and how the client could have been set-up by those who had motive and opportunity to frame her client.

With 15 years of experience and more than 45 jury trials in state and federal court Ms. Daly has built an unparalleled network of experts she can call on to build the best possible defense for her clients.   While Ms. Daly builds a defense to assist her client in preventing or defending criminal charges she can also share beneficial information with co-counsel.  Because criminal defense lawyers have totally different discovery obligations the information Ms. Daly develops can provide the client with the best possible result in their family law action as well.

Another bill passed by California voters was Proposition 35, or the Californians Against Sexual Exploitation Act. The bill, which passed with a vote of 81 percent, requires any registered sex offender to give law enforcement a list of their email addresses, usernames, screen names, and any other identifier they use for social networking, online discussion forums, chat rooms, and instant messaging.

Immediately after its passage, several organizations filed lawsuits against the act. Among them were the American Civil Liberties Union and the Electronic Frontier Foundation. The groups argued that the measure would have severely and negatively impacted the First Amendment rights of registered sex offenders.

Recently, Proposition 35 was blocked by a federal judge. U.S. District Judge Thelton Henderson of San Francisco called the act “overbroad” and stated, “The challenged provisions have some nexus with the government’s legitimate purpose of combating online sex offenses and human trafficking, but the government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”

Following the injunction by the judge will be a trial to determine whether or not the measure has merit. If it is allowed to go into effect, the measure will impact approximately 75,000 offenders registered in California. The act would apply not only to those who have committed Internet-related sex offenses but all those who registered as sex offenders—which include people who have committed misdemeanors like indecent exposure.

A recent article entitled “New Laws for Property Owners and Landlords” outlines some recent law changes that all California property owners and landlords should know. Here are some of the highlights:

As of January 1, 2013, the owner of an apartment complex or building (whether it is rented or leased) is usually responsible for testing and maintaining all smoke alarms. In a year (January 1, 2014), this same law will apply to rented or leased single-family residences as well.

In January 2016, stricter building standards will be going into full effect. In preparation for that, as of January 1, 2014, property owners and landlords will be responsible for installing additional smoke alarms necessary to meet the upcoming building standards.

As of this year, landlords offering to rent a residential property containing one to four units must provide written notice to potential tenants if a notice of default has been received. This notice must be provided before a lease agreement is finalized. In addition, the notice must be provided in the following languages:

• English
• Spanish
• Chinese
• Tagalog
• Vietnamese
• Korean

Another new law for the current year states that landlords may dispose of personal property abandoned by vacated tenants if it is worth less than $700. Previously, the property had to be worth less than $300 in order to be eligible for disposal. Certain procedures must be followed, so it is important to consult an attorney before simply disposing of any property.

In addition, the above law states that property owners and landlords cannot assess storage fees if the personal property is removed by the tenant within two days of the tenant vacating the residence.

Unfortunately, the laws mentioned in this article are not the only new laws of which landlords and property owners need to be aware. There are more laws going into effect in the coming years in addition to those that have already gone into effect as of January 1st. If you are a property owner or landlord, protect yourself and your assets by knowing and following all of the landlord-tenant laws that apply to you. Having an experienced civil litigation attorney can ensure your ability to do just that.

John and Alice married in 1995.  By 2005 Alice was reading books on the subject of divorce and money.  One of the books included information about using false criminal accusations against a spouse in criminal proceedings.  Alice and co-conspirator, Toothman, conspired to bring false claims against John.  In August 2005 Alice and Toothman reported to law enforcement that John had threatened to kill Alice and the couple’s children.

A criminal case alleging a felony violation of Penal Code section 422, criminal threats, was filed against John.  The case went to trial.  John was acquitted.

At the time of reading the verdict, and in somewhat dramatic fashion, the jury foreperson read a statement that said:  “We, the jury, believe that the absence of any real investigation by law enforcement is shocking and we agree that this appears to follow a rule of guilty until proven innocent.  There was no credible evidence supporting the indictment.  We believe prosecuting this crime was not only a waste of time, money and energy, for all involved, but is an affront to our justice system.  The jury recommends restitution to the defendant for the costs and fees for defending himself against these charges.  This jury requests that our collective statement be made available in any [future] legal action relating to these parties…”

John filed a civil suit against Alice and Toothman for malicious prosecution, false arrest and imprisonment, negligent statements without justification, intentional infliction of emotional distress, and for damages for violation of his civil rights.  The full opinion is available at Lefebrve v. Lefebrve, 196 Cal.App.4^th 696.

The fact that a criminal trial even occurred is a travesty of justice.  The unfortunate truth is law enforcement, particularly state and local law enforcement, does not have the man power or the budgets to investigate every claim.  Deputy District Attorneys often have enormous case-loads, sometimes more than 100 files. In particularly overwhelmed jurisdictions the unfortunate reality is that they read their files the night before they start a trial,  or even while on their way to the trial department.

Sophisticated clients can invent criminal allegations against other people that can fool even the best trained law enforcement.  That is why a working relationship, a partnership, between family law lawyers and experienced criminal defense attorneys like Kresta Daly,are so important.  Sometimes, these are the only people with the time and the ability to defend and protect not only clients but the integrity of the legal system.

Kresta Daly has a proven track record of working with family law attorneys and defending people falsely accused of a crime.  John, the defendant in this case, ultimately received a finding of factual innocence which removes the accusations from his records.   Kresta Daly is one of only a few Sacramento Criminal Defense Attorneys who has successfully litigated a finding of factual innocence.

If you have a case that would benefit from the advice of an experienced criminal defense attorney please contact Kresta Daly.

This event is particularly special because it marks the 10^th anniversary of Empty Bowls! At last year’s event, 1,400 attended and raised over $106,000. River City Food Bank hopes that this year will be even more successful: the organization’s goal is to raise $125,000. 96% of the proceeds from the fundraiser directly funds River City Food Bank’s programs serving the community.

Guests of the Empty Bowls fundraiser will enjoy a delicious meal, which includes appetizers, gourmet soup, bread, dessert, and wine, catered by Classique Catering and other Sacramento restaurants. Guests can also take home an attractive bowl handcrafted by local artists and celebrities reminding them of the many in our community who go hungry every day.

Empty Bowls offers an evening dinner on Monday, March 4^th and two luncheons on Tuesday, at 11:30 a.m. and 12:30 p.m. Admission to the dinner is $60, and admission to the luncheon is $30. You can buy tickets online or at The Cathedral Bookshop and The Avid Reader at the Tower. The event will take place at 1400 J Street, which is just a short drive from the Barth Tozer & Daly, LLP office!

To learn more about this event, visit the event page or the River City Empty Bowls website.

Experienced criminal defense attorneys know how to help individuals take steps to clean up criminal records – sometimes to the point where old convictions may no longer exist and reports to law enforcement are expunged.

Under certain circumstances people with prior felony charges may be entitled to a finding of factual innocence.  Courts rarely grant findings of factual innocence; Kresta Daly is one of few Sacramento criminal defense attorneys who has had a finding of factual innocence granted.  When courts grant a finding of factual innocence law enforcement and court records are ordered sealed and three years later the files are ordered destroyed.  A former defendant can legally say they were never accused of a crime – the records are ordered wiped clean.

Another option for people with old felony convictions is to obtain a certificate of rehabilitation.  Any person with any kind of prior felony is entitled to apply for the certificate.  If a court grants the certificate of rehabilitation it is forwarded onto the governor’s desk for a full pardon.  Even if the governor doesn’t grant the pardon merely having the certificate sometimes is enough for licensing agencies.  Some years ago a client of Ms. Daly’s, a person who had spent many years in prison, won a certificate of rehabilitation.  The governor didn’t sign the pardon but the California State Bar issued the client a license.

More common remedies, such as reducing certain felonies to a misdemeanor post-conviction, or expungements, are often helpful for clients seeking to keep or maintain professional licenses.  While reduction of a felony to a misdemeanor or an expungement still requires an individual to disclose a conviction on a license application, such remedial actions are beneficial because they have a direct bearing on the degree of the penalty imposed and can be powerful mitigation evidence.

In addition to statutory remedies to help licensees and applicants with criminal convictions or arrests, experienced criminal defense lawyer Kresta Daly is an expert at developing a mitigation plan and presenting the evidence to a licensing board or other authorities in a compelling and persuasive manner.

If you have a client who could benefit from Ms. Daly’s advice, or if you have client facing a criminal investigation or prosecution, please contact Kresta Daly.

Compared with other states in the U.S., California has more liberal discrimination and liability laws. California more often imposes strict liability, which makes a business liable for a person’s injuries, regardless of whether or not the business was negligent and the amount of care that the injured person exercised when performing the activity that injured them. In addition, California’s Fair Employment and Housing Act is much broad than federal Title VII; for example, the protected standards are more expansive. Title VII protects individuals from discrimination based on their race, color, religion, sex, or national origin. California law, however, goes beyond Title VII to also include sexual orientation, marital status, age, and pregnancy, among others. In the case of ADA violations, the plaintiff’s lawyers have less restrictive theories under which they can argue in California than under federal law. Many businesses have potentially fallen victim to fraudulently filed lawsuits alleging violations of the Americans with Disabilities Act (ADA).

Statistics from the Equal Employment Opportunity Commission, the federal agency responsible for enforcing anti-discrimination laws, report 7,166 discrimination-related lawsuits in California in 2011, the third-highest in the nation.

For business owners, it’s less a question of if you’ll be sued as much as it is when you’ll be sued. Many business owners, upon embarking into their field, are surprised at the number of times that they are sued. Real estate owners and property managers, for example, are frequently held liable and sued for a wide variety of reasons, including discrimination during eviction, slip and falls or other personal injuries, and the handling of security deposits. One real estate manager told me, “I never thought I would be sued so many times. I anticipated someone suing over the return of a security deposit because that is [common in] the industry. Surprises? Being sued for discrimination not once but twice by people I had never met or even seen before.”

If you or your business have been named the plaintiff of a lawsuit, contact an experienced civil litigation attorney at Barth Tozer & Daly, LLP.

Join fellow Sacramento residents and visitors to support this charity while enjoying an exciting evening filled with the best food and wine in the area. The Winter Wine & Food Fest will feature food and beverages from the finest restaurants and wineries in Sacramento. Guests can also listen to live entertainment and participate in the event’s live and silent auctions.

Proceeds from the 25^th Annual Winter Wine & Food Fest will support the Sacramento & Northeastern California chapter of the Make-A-Wish foundation. Children with life-threatening illnesses from 2 ½ to 18 years old in the Sacramento area will be eligible to have their wishes granted by the foundation. The Make-A-Wish foundation strives to provide these children with renewed hope and strength in the face of adversity. In 2012, this event raised enough to grant the wishes of 87 local children.

This event will take place on Saturday, February 23^rd at the Convention Center (1400 J Street). Doors open at 5 p.m. The benefit is open only to those 21 and older. Admission costs $85 or $185 for VIP. For more information about this event, visit the city of Sacramento website.

The appellate court found Julio Morales, who was convicted of raping an unconscious woman, must be re-tried because of errors made by the prosecutor in arguing the case in front of the jury.

Penal Code section 261, California’s rape statute, broadly defines the crime of rape and includes nonconsensual sexual intercourse accomplished against someone’s will by force, threats or fraud. Nonconsensual sexual intercourse occurs when a person is “unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information.”

The prosecuting attorney argued that Jane unconscious of the act because she was asleep, which was correct under California law. Had the prosecutor used only this argument, the case likely would not have ben overturned on appeal.  However, the prosecutor also argued the defendant, Morales, tricked Jane into thinking he was her boyfriend. Due to an odd and arcane quirk California law only allows this argument if the victim is married.

The court stated, “Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes… Because we cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory, we must reverse.”

In their decision, the judges urged the California legislature to revisit rape law to include impersonating a significant other as fraudulent conduct inducing the victim’s consent.

Advances in technology have made it possible for many professionals to regularly telecommute.  Recently Ms. Daly represented a doctor who, because of the nature of his practice, was able to work remotely much of the time.  Unfortunately, it was this desire to work remotely that ended up getting him into hot water.  The doctor responded to an advertisement for someone in his practice area with the option of working from home.  After a couple of interviews he got the job.

When he first started the job he filled out what he thought was routine paperwork.  His mistake was that he did not thoroughly read the paperwork he was signing.  Had he read it, he would have realized that in addition to signing typical paperwork, he also authorized bank account to be opened and allowed his new employers to have access to that bank account.

After some months he began to be suspicious of his employers.  Patient files didn’t seem quite right, and some procedures appeared unusual.  The doctor was suspicious but couldn’t exactly put his finger on why  — at least not until the FBI came to his door and started asking questions.  Much to his surprise he learned he was a suspect in a MediCare fraud investigation!

He soon learned that not only was the FBI involved, but also the California Department of Justice and the Medical Board.  Investigators at the board informed the doctor that they were days away from suspending his license.

Ms. Daly, working closely and quickly with the doctor’s licensing attorney, first persuaded the Medical Board not to suspend his license.  Over the coming months the team met with FBI and DOJ agents and ultimately proved this doctor was a victim in a complex fraud scheme.

In the end the medical board, initially so anxious to suspend his license, was actually emailing the doctor asking for his input on other investigations in his practice area!  There was no publicity and  no damage to the doctor’s professional reputation.

In recent years the federal government has stepped up its efforts to combat MediCare fraud.  With the United States Supreme Court’s ruling upholding the Affordable Care Act, and the ensuing expansion of MediCare, instances of fraud and investigations into MediCare fraud are going to rise.  And, as in the case of this doctor, some of the suspects in these investigations will be victims of someone else’s crime.

Assisting professional clients navigate the criminal justice system requires more than just good lawyering – it requires someone who knows how to make the system work.  When Professional Licensing and Employment attorneys have clients facing possible criminal issues, Ms. Daly provides invaluable assistance and counsel. Ms. Daly has been working with Professional Licensing and Employment lawyers for many years, assisting in cases involving criminal allegations.