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Daniel Martin Smith

Daniel Smith’s Answers

25 total

  • I spent 18 months in jail after being wrongfully convicted. I won my case on appeal. Now I am out of jail. Can I get money?

    charged with robbery, then they added a lesser of larceny.......i took stand and it was clear we were going to win. after i got off the stand over our objections they added theft by falsae pretences to. i was convicted. appeals court reversed conv...

    Daniel’s Answer

    The typical answer is to contact your attorney. Not so much help.

    I believe the correct answer is that unless your victory on appeal can support a motion for a determination of factual innocence, any recovery from the State is improbable.

    I hope that makes some sense to you. It should help you "ask your lawyer"

    Good luck,

    Daniel Smith

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  • Can I get my statutory rape felony expunged?

    I entered a plea to felony statutory rape three years ago. I did four months in county jail and the rest on probation. I did perfect on probation with no violations or anything. My attorney says that felony convictions under section 261.5 can't...

    Daniel’s Answer

    If the your age and the victim's difference was three years or more, which PC 261.5(c) describes, you may be able to bring a motion to reduce the felony based on the fact that you were given a misdemeanor sentence involving only county time. I have been successful in the past bringing such a motion before the court with that very argument.

    What you have accomplished since and the facts surrounding your case (like whether it was a dating situation that the parents did not approve), are factors a court will always look for. But I believe that you have a argument to get this charge expunged.

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  • What charges would this person receive?

    If you ask a minor,do u wanna have sex what charges can that person face?

    Daniel’s Answer

    A lot depends on the actions that go along with that request. However, the first charge that comes to mind is PC 647.6 which is "Molesting or Annoying a Minor" under California law. This is a wobbler felony and I believe is quite possibly an offense that could result in life long registration as sex offender under PC 290.

    If the defendant exposes him or herself in any way that could be construed to be an act of sexual gratification or arousal, then you are definitely looking at a PC 314 offense involving lewd and lascivious acts. A charge of PC 314 subdivision 1 or 2 is mandatory PC 290 registration.

    PC 290 registration is complicated and there are only a few good arguments left to find relief from such an order. If you have any questions, you can speak with any of our 4 criminal defense lawyers at (619) 258-8888 or contact us on our website at www.sandiegodefenders.com

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  • Should immigration lawyer call ICE?

    Immigration judge approved adjustment of status but we have to wait 30 days to see if ICE is going to appeal---- should the lawyer call ICE to see if they are gonna appeal or does that bring more attention to the case??? My husband(mexican who en...

    Daniel’s Answer

    I believe you should, but I would call James Rudolph at (619) 235-0010 and ask his opinion. He practices exclusively in immigration and his partner in criminal defense. He is who I call with questions like that all the time. We all must work together.
    Dan Smth
    www.sandiegodefenders.com

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  • Getting out of being an Expert Witness that was subpoenaed without payment?

    Our small firm was just subpoenaed (both the president and the company itself) without our knowledge on a job we worked on (the case is about dispute with property lines) for the client. We had not been paid for our original work and they will not...

    Daniel’s Answer

    I also believe that you will not be an expert witness unless you allow the lawyers to take you there. Perhaps a letter to the lawyers expaining that your knowledge is limited and you will not testify as an expert.

    As you have been told, you may be subject to arrest for contempt of court.

    Best of Luck.

    Dan Smith
    www.sandiegodefenders.com

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  • Im 15 im on probation i got a year may 4 and i got into a fight at school and got kicked out i have to see my po on the 21 of

    march do you think she will arrest me ive alrdy been locked up and did 21 day stop what will happen to me this time ive only had a violation for curfue i live in San DIego

    Daniel’s Answer

    Most likely, your PO will do no less than to ask that your probation be revoked and reinstated to add more tome to your probation and add some additional tasks such as anger management classes. Your best bet is to do some community service and have it documented to show that you are serious about changing your ways. You can also make sure that you keep up with your school assignments by asking your parents to go to the school and get your assignments (if just suspended) or seek an alternative education program.

    I have a client with a similar case now, and the most important thing to the judge is not necessarily what your PO wants, but what direction and what steps you are taking to get there.

    Good Luck,

    Dan Smith
    www.sandiegodefenders.com

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  • First Time Offense = 4 Years Probation

    Class 6 felony drug possession- minimal requirement Also charged with Speeding, possession of paraphanelia, and posession of marijuana (less than 1 gram) Colorado no priors I am currently reviewing an offer presented by the DA and my lawyer ...

    Daniel’s Answer

    You have plenty of options. First, you can ask for a lesser term of probation with a out-patient drug program. Upon successful completion of let's say a 90 day out patient program meeting once a week, you could ask if the prosecutor would not oppose early termination of probation, a reduction to a misdemeanor, and a dismissal.

    Many times, it would be smart to go to the court house and see if there is a friendly public defender to talk to. They usually know what the standard deal is in that particular court (which you should return to).

    It sounds like you do not have confidence in your lawyer. Have you investigated whether he is a true criminal defense practitioner. It makes a difference. This is not like going to the doctor in the old West. You need somebody who does this on a regular basis.

    Only an attorney that either practices there regularly or knows enough to ask somebody that is in that court regularly will know what is typical.

    By the way, offers often come from the DA, that is not the litmus test. But, your attorney can counter and should try to keep the deal open as long as possible. Call another attorney for a free consultation. But don't take a second opinion as absolute fact. None of us can look into the future and predict an outcome. Every state is different. Although I do not practice in CO., the class 6 felony sounds a lot like the AZ system of the Model Penal Code.

    But, Breckenridge? It seems that a ski town might not be so harsh, but it is different everywhere.

    Best of Luck.

    Dan Smith
    www.sandiegodefenders.com

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  • Associate is charged with drug trafficking, how much time is he looking at?

    A family member is currently detained in San Diego's Federal Detention Center for attempting to bring 30 lbs of Crystal Meth from the border of Mexico into the United States. 1.The car he was driving was in his name, 2. he does not have a hi...

    Daniel’s Answer

    • Selected as best answer

    I am former Federal Defender and practice primarily in Federal Court. Your family member is looking at a minimum mandatory sentence of 10 years of which you serve 85% in the federal system. The advisory USSG or sentencing guidelines for 30lbs or just under 15 kilos of meth mixture is a whoppping 188 to 236 months before adjustments. Keep in mind that even if he or she goes to trial, he may receive a 2 level reduction to level 34 which equates to 151 to 188 months. This is all assuming he is a category I criminal history category which means he is not on probation and has only one relatively minor prior conviction.

    Confused yet? Well it is confusing and he really needs the help of a seasoned federal defense attorney which is quite different from a state case that you are used to seeing.

    The 1-4 factors you have cited are sentencing type arguments. He may be eligible for "safety valve" with no prior convictions which would relieve him of the minimum mandatory sentence and that is a very good start. If this is a checkpoint case, almost like a border bust, it is common, in San Diego anyway, that a "fast track offer" may be made. However, a competent attorney still needs the reports to evaluate the situation.

    I recently handled a meth 26.5 kilo border bust and managed an amazing 57 month sentence for my client based upon a number of factors. There are so many, that it is best to call a federal practioner. I cannot promise those kind of results in every case. No one should.

    I invite you to call me directly at (619) 233-6900 and we can discuss the case. Be careful of how you are quoted fees and if it includes trial.

    Dan Smith
    Supervising Attorney
    www.sandiegodefenders.com

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  • If I was arrested, but not convicted, of a misdemeanor, is that on my permanent record?

    After a domestic dispute in my apartment about three and a half years ago, the police showed up and asked my boyfriend and I who had been physical first. I was honest, and said it was me, as I had shoved him after finding he had been intoxicated....

    Daniel’s Answer

    It depends on what you call a record. When filling out an employment application you can answer no, I have not been convicted.

    However, if an employer checks a system like livescan or is entitled to the Californina DOJ records, the arrest will show up. It is becoming more and more common.

    If you want to call me at 619-233-6900 and give me the scenerio you are most worried about, we can talk about it.

    Dan Smith
    www.sandiegodefenders.com

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  • Electronic discovery Vs paper evidence?

    Is there any advantage of one over the other - other than cost & efficiency? If one party is reluctant to do electronic but wanted to send papers, is there more to it?

    Daniel’s Answer

    Generally, you can get a disc for $10 and print it out at you office as needed. The advantage is that you are not paying a per page rate for useless title pages and such. Just don't let them charge you a per page charge to scan the pages because they are already scanned. I just picked up 18 discs rather than 8,000 pages at even 10 cents per page is still $800 dollars. Get the discs!

    Call me, Dan Smith, at San Diego Defenders at (619) 233-6900 with any other questions.

    Dan

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