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Jeffrey Brett Hayden

Jeffrey Hayden’s Answers

9 total

  • Can a public defender go to my first court date without me

    And represent me instead of me going

    Jeffrey’s Answer

    I respectfully disagree with my colleagues; the answer is that none of us can answer this question as we lack the necessary information. The first part of the answer lies with the public defender, the rest is based upon the charges you face (which may NOT be those upon which you were cited or booked by law enforcement).

    There are provisions within the Government Code for the Public Defender to accept representation upon you contacting their office. Not often done this way, but they can, and occasionally they do so. You should try speaking to the local office and ask for the Deputy in Charge (of that branch).

    Even if the Public Defender agrees to represent you, the offense(s) may be one for which it is not legal for them to do so. If the charge is a felony, no attorney can appear in your place unless and until the court allows it by authorizing you to sign a form permitting so in open court while your case is on the record. In a misdemeanor case of domestic violence, the law specifically says you must be personally present at the first court date (presumably to facilitate the service of a protective order).

    In other misdemeanors, you CAN be represented by an attorney without personally appearing, but only if it is arranged ahead of time between you and your attorney.

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  • Can a judge in an ongoing criminal case instruct the jury to treat a person accused of a crime never reported, charged, or

    Convicted of, as guilty. And then, use that pressumed guilt as evidence in the unassociated case being tried, "if" the accussed (whom, the judge and deputy DA has had removed from the court room, and can not hear being accused) does not proclaim ...

    Jeffrey’s Answer

    • Selected as best answer

    If I read your question correctly, you are addressing evidence of a prior act used to show the defendant in this case has a propensity to commit that class of offense. There are two instances where these are permitted: domestic violence and sex offenses.

    In such situations, it is evidence of the act, not the conviction, that is admissible. If the judge determines this prejudices the outcome of the case more than it helps in understanding what occurred, the judge should exclude it.

    Perhaps the most troubling part of this evidence is the standardized instructions that lower the burden of proof to find a presumption; a jury is told to find such a propensity by a preponderance of the evidence (more likely than not), which a jury can easily substitute for the standard required to prove the case itself (beyond a reasonable doubt).

    The judge cannot instruct to presume guilt; but, a judge can instruct that if the jury finds the evidence of this lesser extent true it should consider the defendant to be someone who would commit this type of offense.

    If you have questions about the jury instructions, the lawyer in your case should be able to discuss the instructions with you; or, at a minimum, to get you a copy of the instructions for you better understand.

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  • Caught shoplifting

    Was caught with a $9 shirt at jcpenny. No cops were called and i have a clean record. The loss prevention people said i would get a citation and i want to know what to do or what usually happens at this point

    Jeffrey’s Answer

    What happens next will vary wildly with the county in which it occurred.

    In some counties, you will receive a notice to appear. You can appear with a lawyer you've hired, or perhaps be appointed a lawyer; however, the small value of the shirt may result in the case being filed as an infraction (lower level than a misdemeanor, no possibility of jail time) wherein you would not be appointed an attorney.

    In increasing number of prosecuting authorities (usually the office of the district attorney, but in some locales the city attorney might prosecute misdemeanors such as this) are offering some sort of diversion program wherein you complete a program and the case is dismissed without a plea. Moreover, an attorney may be able to negotiate a so-called "civil compromise" wherein an agreement is made between you and the merchant such that you provide payment to cover their costs (loss prevention and merchandise) and they ask the court to dismiss the case even if the prosecution is not on board.

    If you do end up with a conviction, this can be expunged later, when you complete all of the terms and conditions of probation are fulfilled and your probation is over; but, BEFORE YOU EXPUNGE, YOU SHOULD ATTEMPT TO HAVE ANY MISDEMEANOR HERE REDUCED TO AN INFRACTION.

    With the passage of Prop. 47 some two weeks ago, there was a shifting of prosecution of some felonies -- a small number of crimes, but perhaps 30 percent of the case load in some counties -- to misdemeanors. While this does not affect you directly, the shifting of resource allocation may well change the direction this case takes, which can only be to your benefit.

    (As you are 19, this is misclassified as a juvenile matter.)

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  • My teen was handcuffed, put in squad car and accused but wasn't read his rights till he got to the station

    my son was accused of stealing a phone from a car with a friend.they told him if he didn't admit to it they were going to handcuff him. the school confronted him the day after and hand cuffed him, took him to station but didn't read him his righ...

    Jeffrey’s Answer

    When an adult is arrested, the police must give Miranda admonition before asking any questions. [Note, two elements: arrest + questioning.] Often, the outcome rests upon a motion NOT premised upon whether the police officer(s) believed the person was under arrest, but whether a reasonable person would have felt free to leave. Generally the remedy for not having received a Miranda warning is limited to suppressing use of the answers given to the officers' post-arrest questions. An adult "invokes" their right to remain silent either by remaining silent, asserting a demand that his/her attorney be present during questioning, or simply asserting that he/she does not intend to answer any questions.

    When a juvenile is arrested, all of the above applies, with two additional protections. First, the officer(s) arresting officers must give the Miranda warning immediately upon arrest EVEN IF HE/SHE/THEY do not interrogate the minor. Secondly, as well as invoking by the means above, a request for a parent is treated the same as though the minor invoked the right to counsel.

    School authorities are often compelling juveniles to come to the school office, and some combination of either summoning the police and questioning the minors themselves. While the Miranda warnings are generally not required before arrest, nor by anyone other than law enforcement, there is a point wherein other authorities - such as school officials -- are acting not in their other capacity but as partners with law enforcement; this may create remedies not otherwise available when the questioners are interrogators other than the police.

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  • Arrested for DUI. No blood results did they lose the blood

    I'm on felony probation got arrested and there considering it my 2nd DUI even though my original got dropped down to reckless driving My 2nd probation violation. Got 90 for that and 120 for DUI. I got ROR from jail on my last court date. The cou...

    Jeffrey’s Answer

    Hard to answer if they've lost blood without knowing more about where the blood was being processed. In some labs, the blood can be tested fairly quickly; others are seriously backlogged. As yourDUI is at worst a 2nd, your case may be pushed to a back burner as the lab prioritizes in favor of serious felony cases and cases wherein deadlines may be looming.

    The tube in which your blood was stored should have had a preservative inside before your blood was added; properly administered, this preservative should keep your blood alcohol level from rising of falling as the blood is stored.

    An attorney can inquire about the blood alcohol lab, the backlog there, and whether your blood should be independently tested for blood alcohol and preservative levels.

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  • My son has a warrant for a probation Violation, So to day he goes to put him self on Calender .

    the Clark told him it was to late that he needed to turn him self in at the jail but what dose that mean for him after the time is served , will there still be a fin and will he still have to pay or be on probation ?

    Jeffrey’s Answer

    Some courts have recently begun to deny someone adding himself/herself to the court calendar when there is a warrant outstanding. A clerk is likely saying what the court wanted that clerk to say.

    If your son contacts an attorney, he/she may be able to add the matter to a calendar as a work around. If the court set bail, another option might be to post the bail, which would lead to another court date.

    If your son turns himself into the jail, he will be booked but brought to court within a few days. If the violation is minor, or the underlying case minor, he will likely get bail and be released, or possibly have the chance to formally admit the violation for time served or slightly more than the time he's already served.

    As the underlying offense or the violation go up in seriousness, the likelihood of release on bail diminishes.

    Hiring an attorney will not only provide getter information gathering, but would afford your son and his family to plan and do some damage control before inserting himself into the jail.

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  • Ordered to appear at the hearing for my juvenile record to be sealed?

    I have filed an application to get my juvenile record sealed. I just got the hearing date and the box is checked " You are ordered to be present at the hearing" I read up on it, because I was under the impression I did not have to be present. ...

    Jeffrey’s Answer

    Had the court not ordered you to appear, you might have moved forward alone. Now: YOU ONLY NEED A LAWYER IF YOU WANT THE REQUEST TO BE GRANTED. The court will undoubtedly ask about the new conviction. Of equal importance is the matter that brought you before the juvenile court as well as your performance on probation. An attorney can help you prepare. Having any of your old probation reports or court records will help him/her to prepare you. While the infraction should not prevent you from getting your record sealed, the way you handle yourself (or better still, the way your lawyer handles the appearance) can make or break the deal. Hire an attorney who practices in juvenile court; if that lawyer is familiar with the court (Santa Cruz?) where you will be appearing, so much the better.

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  • Elements to proving child sexual assault, possible plea bargins, sex offender classification as a result of guilty plea finding

    What is the best defense for it? What is needed to prove guilty? Will it always result in the classification of sex offender? What are the plea bargains for it?

    Jeffrey’s Answer

    Under California Law, there are several different laws relating to child sexual assault. The following are included as examples. Adding such elements as force or fear or multiple victims will lead to additional and more serious charges than those shown here.

    Penal Code section 288(a). Lewd Act With a Child Under 14. The elements: The person touched the body of a child. The child was under 14 years old. The touching was done with the intent to arouse, appeal to, or to gratify the lust, passions or sexual desires of either the person or the child. A conviction for this offense per se requires registration as a sex offender. Defenses obviously include factual innocence, but also include negating the specific sexual intent outlined above. Mistake of the child's age is NOT a defense, nor is a belief - actual or mistaken - that the child consented. The touching need not be of a sexual nature.

    Penal Code section 288(c). Lewd Act With a 14 or 15 year old child. The elements include exactly the same as set forth for section 288(a), with the added element that there is a ten year age difference. A conviction for this offense per se requires registration as a sex offender. The same defenses of factual innocence, and lack of the required mental state apply, as does the additional defense that the ages were closer together than ten years. Mistake of the child's age is NOT a defense, nor is a belief - actual or mistaken - that the child consented. The touching need not be of a sexual nature.

    Penal Code section 647.6 Annoying or Molesting Children. This does not require touching, per se, only that the person engaged in acts or conduct directed at a minor (a child under 18) which would unhesitatingly disturb or irritate a normal person were it directed at that person and that the acts were motivated by an abnormal or unnatural sexual interest in that child. A conviction for this offense per se requires registration as a sex offender. It is not necessary that the child be annoyed or disturbed, nor is any physical contact necessary. Defenses include mistake of age, lack of sexual intent, or that the conduct wasn't proven to have been of a nature which would, without hesitation, disturb a normal person were it directed at said normal person.


    Penal Code section 261.5. Unlawful Sexual Intercourse. Elements require an act of sexual intercourse (any sexual penetration constitutes engaging in an act of sexual intercourse, even if only slight penetration), that the two persons were not married to each other at the time, and that the alleged victim was under 18 years of age. There is no requirement the act was motivated by a sexual interest in children. Mistake of age is a defense. Registration is not required by law, but can be ordered at the discretion of the sentencing court.

    Penal Code section 647(a). Either lewd conduct in public (engaging in a lewd act either upon one's self or another) in public or where it might be seen by members of the public OR solicitation of a lewd act (where the act was to be performed in public). Registration is not required by law, but can be ordered at the discretion of the sentencing court.

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  • Under CA juvenile criminal procedure can a juvenile record be sealed

    What do I have to do to get my juvinial record sealed?

    Jeffrey’s Answer

    The Juvenile Court clerk or your probation officer has a form in which you request to have your record sealed, you serve a copy to each probation and the District Attorney's office and file with the court.

    That being said, you need to meet certain qualifications in order to have the record sealed.

    First, you must have completed your probation. Second, sufficient time must have elapsed such that either five years have passed since the offense date, or you must be 18 years or older, whichever comes first.

    Certain offenses require you to have completed probation for a year or more, while other offenses are no longer able to be sealed.

    For a general explanation of juvenile court procedures, feel free to look at the web address below.

    You'll find the rules regarding sealing at section 781 of the Welfare and Institutions Code. The list of offenses that can no longer be sealed are listed in paragraph (b) of section 707 of the Welfare and Institutions Code. If you do have such a mark on your record and you still want your record sealed, speak to an attorney. It may be possible for the attorney to convince the court to modify its original order if the interests of justice suggest it to be appropriate. See Welfare and Institutions Code section 782 (which allows the judge to change orders, sometimes years later -- even after you are no longer on probation -- if the interests of justice demand this).

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