Tag: California

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Federal Crimes

federal crime

Generally speaking, the principles of criminal defense are the same at the Federal level as they are at the state level. However, procedures and rules are quite different. It’s important to have an experienced attorney who has been admitted to practice in your federal district. Of all criminal charges, the most intimidating can be federal charges. The federal government has virtually unlimited money and resources to pursue its charges. It often takes years to build a case.
If you learn that you are under investigation for a federal charge, it is very likely that you will be charged. By the time you are charged or indicted, the feds will have built a substantial case against you. Because of their vast resources, that evidence may include wire taps and video surveillance. Our experienced attorneys can help you defend your case, it is important that you consult with us as quickly as possible.

“In the United States, a federal crime or federal offense is an act that is made illegal by U.S. federal legislation. Prosecution happens at both the federal and the state levels; thus a “federal crime” is one that is prosecuted under federal criminal law, and not under a state’s criminal law, under which most of the crimes committed in the United States are prosecuted.

This includes many acts that, if they did not occur on U.S. federal property or on Indian reservations or were not specifically penalized, would otherwise not be crimes or fall under state or local law. Some crimes are listed in Title 18 of the United States Code (the federal criminal and penal code), but others fall under other titles; for instance, tax evasion and possession of weapons banned by the National Firearms Act are criminalized in Title 26 of the United States Code.

Numerous federal agencies have been granted powers to investigate federal offenses to include, but not limited to, theBureau of Alcohol, Tobacco, Firearms, and Explosives, Drug Enforcement Administration, Federal Bureau of Investigation,U.S. Immigration and Customs Enforcement, Internal Revenue Service, and the Secret Service.

Mail fraud which crosses state lines or involves the (national) United States Postal Service is a federal offense. An equivalent offense, under Canadian criminal law, is theft from mail[1] (section 356 of the country’s Criminal Code).

Other federal crimes include aircraft hijacking, kidnapping, bank robbery, child pornography, obscenity, tax evasion,counterfeiting, violation of the Espionage Act, wiretapping, art theft from a museum,[2] damaging or destroying public mailboxes, immigration offenses, and since 1965 in the aftermath of the President John F. Kennedy’s assassination, assassinating the President or Vice President.[3]

In drug-related federal offenses mandatory minimums can be enforced. Federal law is implicated when a defendant manufactures, sells, imports/exports, traffic, or cultivate illegal controlled substances across state boundaries or national borders.[citation needed] A mandatory minimum is a federally regulated minimum sentence for offenses of certain drugs.[4]

Prosecution guidelines are established by the United States Attorney in each federal judicial district and by laws that Congress has already established.” –wikipedia

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Robbery

robbery

Robbery (PC 211):

Penal Code 211 defines “Robbery” in the state of California as: taking the personal property that is in the possession of another person, from their immediate presence, against their will, or through the use of force and/or fear (for example, wearing masks and wielding guns). However, the crime can also be committed in less obvious ways such as: breaking into a home with residents inside, then threatening them with physical harm before stealing their property, or drugging someone then stealing their personal property.

Penalties (PC 211):

First degree robbery can land you in state prison for 3 to 9 years. Second degree robbery is punishable by 2 to 5 years in state prison.

Legal Defenses (PC 211):

In order to defend a person charged with robbery, it must be proven by the defense that there was no force or fear is taking the property that you felt a right to take the property, that you are a victim of mistaken identity and that you were falsely accused.

Legal Definitions

211. Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.

212. The fear mentioned in Section 211 may be either:
1. The fear of an unlawful injury to the person or property of the
person robbed, or of any relative of his or member of his family;
or,
2. The fear of an immediate and unlawful injury to the person or
property of anyone in the company of the person robbed at the time of
the robbery.

212.5. (a) Every robbery of any person who is performing his or her
duties as an operator of any bus, taxicab, cable car, streetcar,
trackless trolley, or other vehicle, including a vehicle operated on
stationary rails or on a track or rail suspended in the air, and used
for the transportation of persons for hire, every robbery of any
passenger which is perpetrated on any of these vehicles, and every
robbery which is perpetrated in an inhabited dwelling house, a vessel
as defined in Section 21 of the Harbors and Navigation Code which is
inhabited and designed for habitation, an inhabited floating home as
defined in subdivision (d) of Section 18075.55 of the Health and
Safety Code, a trailer coach as defined in the Vehicle Code which is
inhabited, or the inhabited portion of any other building is robbery
of the first degree.
(b) Every robbery of any person while using an automated teller
machine or immediately after the person has used an automated teller
machine and is in the vicinity of the automated teller machine is
robbery of the first degree.
(c) All kinds of robbery other than those listed in subdivisions
(a) and (b) are of the second degree.

213. (a) Robbery is punishable as follows:
(1) Robbery of the first degree is punishable as follows:
(A) If the defendant, voluntarily acting in concert with two or
more other persons, commits the robbery within an inhabited dwelling
house, a vessel as defined in Section 21 of the Harbors and
Navigation Code, which is inhabited and designed for habitation, an
inhabited floating home as defined in subdivision (d) of Section
18075.55 of the Health and Safety Code, a trailer coach as defined in
the Vehicle Code, which is inhabited, or the inhabited portion of
any other building, by imprisonment in the state prison for three,
six, or nine years.
(B) In all cases other than that specified in subparagraph (A), by
imprisonment in the state prison for three, four, or six years.
(2) Robbery of the second degree is punishable by imprisonment in
the state prison for two, three, or five years.
(b) Notwithstanding Section 664, attempted robbery in violation of
paragraph (2) of subdivision (a) is punishable by imprisonment in
the state prison.

214. Every person who goes upon or boards any railroad train, car
or engine, with the intention of robbing any passenger or other
person on such train, car or engine, of any personal property thereon
in the possession or care or under the control of any such passenger
or other person, or who interferes in any manner with any switch,
rail, sleeper, viaduct, culvert, embankment, structure or appliance
pertaining to or connected with any railroad, or places any dynamite
or other explosive substance or material upon or near the track of
any railroad, or who sets fire to any railroad bridge or trestle, or
who shows, masks, extinguishes or alters any light or other signal,
or exhibits or compels any other person to exhibit any false light or
signal, or who stops any such train, car or engine, or slackens the
speed thereof, or who compels or attempts to compel any person in
charge or control thereof to stop any such train, car or engine, or
slacken the speed thereof, with the intention of robbing any
passenger or other person on such train, car or engine, of any
personal property thereon in the possession or charge or under the
control of any such passenger or other person, is guilty of a felony.

215. (a) “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.
(b) Carjacking is punishable by imprisonment in the state prison
for a term of three, five, or nine years.
(c) This section shall not be construed to supersede or affect
Section 211. A person may be charged with a violation of this section
and Section 211. However, no defendant may be punished under this
section and Section 211 for the same act which constitutes a
violation of both this section and Section 211.

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Immigration

A California criminal conviction can weigh heavily on those individuals who are not yet United States citizens. Certain kinds of criminal convictions can lead to deportation- regardless of how long that person has resided in the United States. There are also “inadmissible crimes” that will restrict an immigrant from re-entering the country after leaving, becoming a U.S. citizen, or deny the application for permanent residency. It is important for non-citizens to acquire an experienced attorney that is both involved in criminal defense and immigration; our teams of attorneys provide this distinct dual representation.

California laws

In California, Democratic legislators approved a number of new laws in 2014 that will benefit people living in the state illegally.

One of the most prominent laws to take effect Jan. 1 was adopted last year: AB60. Beginning Friday, unauthorized residents in California can apply for a driver’s license. Already, several local DMV offices are jammed up 90 days out for appointments as the first of an estimated 1.4 million eligible new drivers begin the process to get their new licenses.

To help these new drivers secure the auto insurance that will be required when they register their cars, legislators passed another law this year to allow unauthorized immigrants for the first time to buy insurance through the California Low Cost Auto Insurance program.

Other laws that will impact undocumented immigrants include:

• College students who entered the country illegally or stayed beyond their visa expiration will now have access to the same loan opportunities as other students. This comes under state legislation endorsed by California’s two public university systems. The California DREAM loan program is expected to make loans available to about 2,500 students.

• Nonprofits that offer aid to undocumented immigrant children will be able to tap into $3 million in legal aid to assist the minors as they go through the legal system;

• To reduce deportations of legal immigrants who are not yet citizens and who are convicted of misdemeanors, the maximum possible misdemeanor sentence in California was reduced by one day, from one year to 364 days.

What’s ahead

One significant law passed in 2014 that won’t take effect until 2016 will allow all Californians, regardless of immigration status, to apply for a professional license, including doctors, nurses, beauticians, pharmacists, accountants, real estate agents and landscapers.

The new law will require the state’s licensing boards to accept federal individual taxpayer identification numbers in lieu of Social Security identifications. (The legislation expands on a 2013 California law that allows the California Supreme Court to approve law licenses to qualified individuals, regardless of immigration status.)

Opponents said the professional licensing law violates federal law. Sen. Ricardo Lara, D-Bell Gardens, who sponsored the bill, counters that federal law prohibits unauthorized immigrants to be employees but that they can start businesses or work as independent contractors.

“This is about doing right by those individuals who have studied, sacrificed and mastered their professions, but are unable to practice because of their immigration status,” said Lara, calling the bill the first of its kind in the nation.

“Our state is stronger when we have qualified, highly skilled workers contributing their talents and tax dollars to advancing our economy,” Lara said in a recent statement.

Robin Hvidston, of the Claremont-based We the People Rising, has a different take.

It “will encourage more job seekers to enter the California job market to compete with U.S. citizens for scarce jobs. The theme has oftentimes been that we must have an illegal workforce as American citizens will not do those jobs. But now professional licensing will be made available to those unlawfully present – a very bad development for the U.S. worker,” said Hvidston, whose group lobbies against illegal immigration.

For both immigration rights advocates and opponents, their battle in 2015 continues on a state level. In D.C., a GOP-controlled Congress in the coming year is unlikely to produce the immigration reform packages debated in recent years.

For California, some of the focus will now turn to health care coverage for all, a proposed Office for New Americans and “ensuring that our state really invests in implementation” of Obama’s plans, said Villela, of CHIRLA.

Lara has two bills in the pipeline.

One would expand opportunities for health care coverage to everyone in the state, regardless of their immigration status. (The federal Affordable Care Act specifically excludes people living in the country illegally from insurance coverage through health care exchanges such as Covered California.)

And a second bill would create a California Office for New Americans to help the state’s 2.6 million undocumented immigrants integrate into the state and coordinate efforts to provide education, fraud prevention services, assistance, legal services, English instruction and civics classes to the largest undocumented population in the country. Several states, including Nevada and Washington, have similar offices, Villela said.

“Our state pushed the envelope this year,” Villela said. “And I hope it will continue to push the envelope next year.”

Contact the writer: 714-796-7829 and rkopetman@ocregister.com

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DUI Refusal

DUI-Refusal

California DUI Refusal (VC 13353):

Refusal to take Blood, Breath, or Urine Sample

Chemical test/DUI refusal charges can be very serious. Refusing to take a blood, breath, or urine sample will result in additional jail time served with longer license revocation periods. In addition, you will not be able to acquire a restricted license due to your refusal of chemical testing.

 

I’ve just been arrested for DUI. What happens now?

The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer’s report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

At the time of my arrest, the officer confiscated my driver license. How do I get it back?

Your driver license will be returned to you at the end of the suspension or revocation, provided you pay a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.

The Notice of Suspension that the officer gave me at the time of my arrest states I have ten days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?

A hearing is your opportunity to show that the suspension or revocation is not justified.

The officer stated I refused to take a chemical test. What does this mean?

You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:

  • The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
  • Both the blood or breath tests are not available, or
  • You are a hemophiliac, or
  • You are taking anticoagulant medication in conjunction with a heart condition.

How long will my driving privilege be suspended for not taking the chemical test?

If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.

How is the DMV suspension or revocation for the DUI arrest different from the suspension or revocation following my conviction in criminal court?

The DMV suspension or revocation is an immediate administrative action taken against your driving privilege only. This is called Administrative Per Se (APS). Any sanctions imposed by DMV under APS are independent of any court-imposed jail sentence, fine, or other criminal penalty imposed when a person is convicted for driving under the influence (DUI).

The suspension or revocation following a conviction in court is a mandatory action for which jail, fine, or other criminal penalty can be imposed.

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Multiple DUI (2nd, 3rd, 4th)

Multiple DUI

Multiple DUI Penalties (VC 23152)

 1st DUI Offense:

You can be jailed up to 6 months for your first DUI offense. Your license may be suspended for up to 6 months with probation lasting up to 5 years. You may also be required by the court to attend a court approved alcohol/drug treatment program. A DUI conviction stays on your driving record for 10 years.

2nd DUI Offense:

If you receive a 2nd DUI Violation within 10 years, the penalties imposed require jail time of up to a year, with a license suspension period of up to two years. Probation can be imposed up to 5 years with subsequent DUI alcohol/drug treatment programs required by the offender. The offender will also be required to pay subsequent fines of up to $1,000.00, with possible penalty assessments.

 3rd DUI Offense:

If you receive a 3rd DUI Violation within 10 years, the penalties imposed require a minimum Jail sentence of 120 days up to a year. As with the 2nd DUI Offense, probation can last up to five years and be required to attend alcohol/drug treatment programs, with the license suspension period increasing up to 3 years. The offender will also be required to pay subsequent fines of up to $1,000.00, with possible penalty assessments.

4th DUI Offense:

If you receive a 4th DUI Violation within 10 years, possible state prison time can be imposed. The penalties imposed require a minimum Jail sentence of 180 days to 16 months. Probation and license suspension periods are subsequently increased. However, the 4th DUI offense is no longer a misdemeanor; it will be treated as a felony offense.

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Driving with Suspended License

suspended

Driving with Suspended License (VC 14601):

It is illegal to drive or operate a vehicle when you know that your license has been suspended or revoked. The most common reasons for suspension or revocation are due to DUI conviction(s), mental or physical disabilities, or the result of negligent driving, placing too many points on your driving record.

Penalties (VC 14601)

Driving on a suspended license is a misdemeanor, which can result in possible county jail time and substantial fines. However, the nature of penalties varies in regards to the reason as to why the license was suspended or revoked in the first place.

About Your Suspended License in CA

There are many reasons your CA driver’s license could be suspended, including:

  • Failing to appear (FTA) in court after receiving a traffic ticket. Your license will be suspended until you appear in court.
  • Failing to pay a fine resulting from a FTA. Your license will be suspended until you pay the fine.
  • Not having proof of car insurance.
  • Failing to pay required child support payments.
  • Being caught driving when you are physically/mentally unfit to do so.

For a complete list of actions resulting in a driver’s license suspension, see theCalifornia DMV Driver Handbook.

How Long is My License Suspended?

The duration of your suspension depends on the reason you received it. Typically, suspensions can run anywhere from as little as 30 days for a minor infraction to 1 year for more serious offenses, such as reckless driving.

You could lose your CA license indefinitely if you are not supposed to drive due to a mental or physical disorder. If you would like more information about your individual situation, you may contact the California DMV at (800) 777-0133.

Driving Under the Influence (DUI)

If you are convicted of a single DUI, the court will suspend your driving privilege for 6 months and require you to complete a DUI program prior to your license being reinstated. Note that you may face additional penalties from the DMV on top of what the court hands down to you.

If you are under 21 years old, different suspensions will apply to you. See “DUI Related Suspensions in California” below.

For more information regarding DUI related offenses, please refer to our DUI & DWI in California page.

Evading a Police Officer

If you attempt to evade a police officer performing their regular duties, you may be punished by imprisonment for not more than 1 year. If somebody is injured, you may be subject to:

  • Up to 1 year imprisonment in a county jail OR up to 7 years in a state prison.
  • A $2,000 to $10,000 fine.
  • Both a fine and imprisonment.

Driver Record Points (Negligent Operator)

The California DMV keeps a public record of your driving history. Each incident will appear on your record for 36 months or more depending on the type of conviction and are recorded as points.

If you accumulate 4 points in a period of 12 months, your license will be suspended for 6 months and you will also be on probation for 1 year. Both your suspension and probation will come into effect 34 days after you receive your Order of Probation/Suspension in the mail.

  • For more information about the point system in California, see the “Negligent Operator Treatment System (NOTS)” section below.
  • For more information about point-related incidents, please visit our DMV Point System in California page.
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Hit and Run

hit and run

Hit & Run (VC 20002)

In California you may be charged with a hit and run if the following occurred if: you left the scene of an accident, failed to identify yourself to parties involved, and caused property damage.

  • A misdemeanor hit and run in California is concerned with property damage.
  • A Felony hit and run in California is concerned with injury; you may be charged with a felony if the other party sustained any injuries or death.

Penalties (VC 20002)

  • A misdemeanor hit and run can result in fines up to $1,000 or 6 months in county jail. Informal probation may be granted for a period of 36 months. Restitution fees to damages may also be imposed. The DMV will also count this as 2 points on your driving record.
  • A felony hit and run can result in fines up to a staggering $10,000. In most cases, a prison sentence of 3 years will be imposed. If death or serious injury occurs, the prison sentence could be raised to up to 4 years. A felony hit and run is considered a “wobbler” giving the prosecutor the discretion to consider the charge as a misdemeanor or felony.

What Is a Hit and Run Accident?

A hit and run accident is any accident in which a driver intentionally leaves the scene without providing contact information.

Examples of hit and run accidents include:

  • A car hits you and speeds off.
  • A driver hits your unattended parked car and leaves no contact information or way of collecting damages.
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Drunk in Public/Public Intoxication

drunk

Drunk in Public/Public Intoxication (PC 647 (f)):

In order to violate California’s “drunk in public” law, you need to be so intoxicated that you are either unable to exercise care for your safety or those around you, or, you have interfered, obstructed, or prevented others from using streets, roads, sidewalks, and so forth. Behaving in such a way that invades the peace of others could land you a drunk in public charge.

Penalties (PC 647 (f)):

If convicted of PC 647 (f), a misdemeanor charge will be placed on your record. It will be visible to prospective employers and licensing agencies. If convicted you may face up to 6 months in county jail and/or pay up to $1,000 in fines.

Legal Defenses (PC 647 (f)):

Our skilled criminal defense team of lawyers can use a variety of legal defenses in order to reduce or dismiss your PC 647(f) charge. Some of these defenses include: arguing you were not in a public place, there is insufficient evidence to prove your high level of intoxication, or your civil rights were violated by the police who investigated the charge.

California: California Penal Code 647(f) considers public intoxication a misdemeanor. The code describes public intoxication as someone who displays intoxication to liquor, drugs, controlled substances or toluene and demonstrates an inability to care for themselves or others, or interferes or obstructs the free use of streets, sidewalks or other public way. California Penal Code 647(g) affords law enforcement the option to take an individual fitting the arrest criteria for 647(f), and no other crime, into civil protective custody if a “sobering facility” is available. Essentially, the detainee agrees to remain at the location until the facility’s staff consents to their departure; usually after four hours and upon the belief that the detainee is safe to look after themselves. Not every municipality in California has such a facility. Also, if a person is being combative and/or is under the influence of drugs, they will be taken to jail. Unlike a person who is taken to jail, a civil detainee under 647(g) is not later prosecuted in a court of law. –Wikipedia

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Disturbing the Peace

Disturbing the Peace

Disturbing the Peace (PC 415):

Several ways a person can violate California’s “disturbing the peace” law is by: Unlawfully fighting, or challenging another in a fight, in a public place, willfully and maliciously disturbing the peace by loud and unreasonable noise, and/or using offensive words in public so as to provoke violence.

Penalties (PC 415):

Depending on the circumstances of the case, the prosecutor may charge PC 415 as a misdemeanor or a less-serious infraction. In more serious cases, a person may serve up to 90 days in county jail and/or pay fines up to $400.

Legal Defenses (PC 415):

It is often difficult for prosecutors to prove that a person violated California’s “disturbing the peace” statute, making it easier for our criminal defense attorneys to help you avoid a conviction.

Under California Penal Code 415, it is illegal for a person to do any of the following:

  1. Unlawfully fight in a public place or challenge another person in a public place to fight;
  2. Maliciously and willfully disturb another person by loud and unreasonable noise; or
  3. Use offensive words in a public place which are inherently likely to provoke an immediate, violent reaction.

Actions that can result in a disturbing the peace charge include challenging another person to a physical fight in a bar, playing music at a high volume to disturb your neighbors and repeatedly using racial or ethnic slurs in a verbal confrontation.

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Driving Without a License

Driving Without a License

Driving without a License (12500 (a) vc):

There may be several reasons as to why a person may be charged with driving without a valid license. It is illegal to drive a vehicle in the State of California if you never obtained a driver’s license, failed to renew your license upon expiration, or the state has deemed you ineligible to obtain a license (for example, if you are an illegal immigrant).

Penalties (VC 12500 (a) vc):

Driving without a license in California is a “wobbler”. Depending on the circumstances, the prosecutor has the discretion as to charge this offense either as a misdemeanor or a non-criminal infraction. More than likely, the prosecutor will use your driving history to make a decision. However, if in the process of being charged with this offense you are eligible to obtain a valid driver’s license, the prosecutor may dismiss the charges against you.

If convicted with a misdemeanor (12500 (a) vc), you may face up to six months in county jail, be placed on informal probation for a period up to three years, pay fines up to $1,000, with the possibility of your car being impounded.

Legal Defenses (VC 12500 (a) vc):

The burden is on you to prove that you are, in fact, a licensed driver. If possible, the best method in resolving this charge is to obtain a license before your court date. We can help you postpone your case to latest date possible so that you are able to obtain a license. Unless you are a repeat offender, most prosecutors will allow you to do so.

California Vehicle Code 12500 a vc prohibits people from driving in California without a valid driver’s license.

To be valid, a drivers license doesn’t necessarily have to be issued by the California Department of Vehicles. It just must be (1) a valid driver’s license from the state in which you live, and (2) for the type of vehicle (car, motorcycle, commercial truck, etc.) that you are driving.

If the police gave you a citation for driving without a license, then you (or your attorney, if you hire one) must go to court on the scheduled court date. If neither you nor your lawyer show up, the judge will issue a California bench warrant for your arrest.

Although driving without a license is a relatively minor offense, it’s still a misdemeanor. A conviction, if you suffer one, will appear on your criminal record.  The best way to avoid this outcome is to consult with a California criminal defense lawyer who can help get this charge reduced to an infraction or dismissed altogether.

The police can charge you with Vehicle Code 12500 vc if you get caught driving in a situation where:

  • you have never obtained a driver’s license,
  • you failed to renew your driver’s license after it expired,
  • you established residency in California but failed to obtain a California driver’s license, or
  • you are ineligible for a drivers license in this state (if, for example, you are an illegal immigrant…the ramifications of which are discussed below).

In order to understand better California’s driving laws…specifically with respect to Vehicle Code 12500 a vc “driving without a license”…our criminal defense attorneys will address the following topics:

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Possession of Controlled Substance

possession

Possession of Controlled Substance (HS 11350):

California Health and Safety Code 11350 HS prohibits the possession of specific “controlled substances” without a valid prescription. A “controlled substance” is defined as a drug or chemical whose use, possession, and manufacture are regulated by the government under the United States “Controlled Substances Act”.

Examples of commonly possessed controlled substances include (but are not limited to): Opiates, cocaine, heroin, and peyote. In addition, California’s illegal drug possession law also mandates that it is illegal for a person to possess prescription drugs without a valid prescription (for example, codeine and hydrocodone).

In order to prove that you possessed a controlled substance, the prosecutor must prove that you exercised control over the drug, you knew the drug was in your presence, you knew that the drug was a controlled substance and there was a sufficient quantity of the drug to be used as a controlled substance.

Penalties (HS 11350):

California’s “possession of controlled substances” law is typically treated as a misdemeanor. If convicted, you face up to one year in county jail and/or fines up to $1,000. However, depending on your criminal history, you may face increased jail time and fines.

If you are not a citizen of the United States, a conviction for possession of illegal drugs could lead to possible deportation and denial of re-entry and naturalization.

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Conspiracy to Sell/Transport Controlled Substance

conspiracy

In California, conspiracy to sell drug crimes extend further than possession (HS 11350) and possession with intent to sell (HS 11351), charges. There are a variety of crimes that fall under these categories. Narcotics that fall under this section are cocaine, crack, heroin, ecstasy, ketamine, GHD, and even some prescription drugs such as Vicodin or Codeine (if the possessor does not have a valid prescription). Transportation of a controlled substance (HS 11352) charges stem from an individual causing the drugs to be moved from one location to another. The prosecutor only needs to prove minimal movement in order to successfully bring this charge. An individual may be charged with both transportation and possession of a controlled substance; they are two different criminal counts.

Selling (furnishing) a controlled substance means that the drugs “changed hands”. Money does not have to exchange hands. An individual may be charged with this crime so long as they received anything of value for the controlled substance.

There are various defenses that a qualified attorney may use in order to defend a client against these charges. Many people who are accused of these crimes are eligible for PC 1000 or Proposition 36. It is also important to know that as of November of 2014, Proposition 47 changed possession of a controlled substance (HS 11350) from a felony to a misdemeanor.

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Possession of Marijuana

marijuana

Possession of Marijuana:

As of January 1, 2011 possession of marijuana (one ounce -28.5 grams or less) is an infraction, punishable by up to a $100 fine (plus fees), with no criminal record. Possession of more than an ounce of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first time offense. Subsequent convictions may cause the severity of the sentence to increase, accordingly. A second conviction carries with it a 15-day mandatory minimum sentence.

Distribution of a small amount of marijuana may be treated as possession, depending on the circumstances. Manufacturing or distribution of less than 50 plants (or 50 kilograms) of marijuana carries with it a sentence of 5 years in prison. If the plants number from 50-99, the penalty increases to a maximum of 20 years in prison. For 100-999 plants (or 100-999 kilograms) the penalty is 5-40 years in prison. Lastly, for 1000 plants (or 1000 kilograms) or more, the penalty is 10 years – life in prison.

It is important to note that distribution of more than 5 grams of marijuana to a minor (under 21), doubles the possible penalties. Also, distribution within 1000 feet of a school, playground, public housing or within 100 feet of a youth center, public pool or video arcade doubles the penalties.

Under Prop. 36, first (and second)-time offenders (only) may demand a treatment program instead of jail. Their conviction is erased upon successful completion of the program. Possession (and personal use cultivation) offenders can also avoid conviction by making use of PC  1000, in which case their charges are dismissed upon successful completion of a diversion program.

Possession with Intent to Sell:

Any amount is a felony under H&S 11359. Items that may lead police to charge a defendant with “intent” are: scales, cash, or multiple packages (baggies). A qualified defense attorney will try to reduce an intent charge to a simple possession charge.

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Possession for Sale

Drug Possession for Sale

Possession for Sale (HS 11351):

It is a crime to possess narcotics in California. Possession for sale of controlled substance(s) is an even more serious crime. If you are found, by a police officer, with large quantities of a drug, packaging of the drug in separate baggies, scales, lots of cash, and/or the presence of heavy traffic of people going in and out of your home, you can be expected to be arrested and charged under California’s Health and Safety Code 11351.

Penalties (HS 11351):

Possessing a controlled substance with intent to sell is a felony. A conviction can place you in county jail for 2 to 4 years or probation may be granted with only a year in county and/or a maximum of $20,000 fine. If the prosecutor proves that you have engaged in multiple sales, the penalties imposed would be in connection to each intended sale. If you are a legal immigrant or legal alien, a conviction could lead to possible deportation.

HEALTH AND SAFETY CODE
SECTION 11350-11356.5

11350. (a) Except as otherwise provided in this division, every
person who possesses (1) any controlled substance specified in
subdivision (b) or (c), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code.
(b) Except as otherwise provided in this division, every person
who possesses any controlled substance specified in subdivision (e)
of Section 11054 shall be punished by imprisonment in a county jail
for not more than one year or pursuant to subdivision (h) of Section
1170 of the Penal Code.
(c) Except as otherwise provided in this division, whenever a
person who possesses any of the controlled substances specified in
subdivision (a) or (b), the judge may, in addition to any punishment
provided for pursuant to subdivision (a) or (b), assess against that
person a fine not to exceed seventy dollars ($70) with proceeds of
this fine to be used in accordance with Section 1463.23 of the Penal
Code. The court shall, however, take into consideration the defendant’
s ability to pay, and no defendant shall be denied probation because
of his or her inability to pay the fine permitted under this
subdivision.
(d) Except in unusual cases in which it would not serve the
interest of justice to do so, whenever a court grants probation
pursuant to a felony conviction under this section, in addition to
any other conditions of probation which may be imposed, the following
conditions of probation shall be ordered:
(1) For a first offense under this section, a fine of at least one
thousand dollars ($1,000) or community service.
(2) For a second or subsequent offense under this section, a fine
of at least two thousand dollars ($2,000) or community service.
(3) If a defendant does not have the ability to pay the minimum
fines specified in paragraphs (1) and (2), community service shall be
ordered in lieu of the fine.
(e) It is not unlawful for a person other than the prescription
holder to possess a controlled substance described in subdivision (a)
if both of the following apply:
(1) The possession of the controlled substance is at the direction
or with the express authorization of the prescription holder.
(2) The sole intent of the possessor is to deliver the
prescription to the prescription holder for its prescribed use or to
discard the substance in a lawful manner.
(f) This section does not permit the use of a controlled substance
by a person other than the prescription holder or permit the
distribution or sale of a controlled substance that is otherwise
inconsistent with the prescription.

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Grand Theft

grand theft

Grand Theft (PC 487):

In California, the crime of theft is defined as the unlawful taking of someone else’s property. It is considered grand theft under Penal Code 487 if the property is valued over $950. If convicted of grand theft, you may face many repercussions to your professional and personal life. Examples of grand theft include (but are not limited to): shoplifting an item valued higher than $950, embezzling money in great amounts from an employer, or breaking into a home to steal personal items worth thousands of dollars.

Penalties (PC 488):

This is considered a “wobbler”, meaning the prosecutor has the discretion to charge a person with a misdemeanor or felony. A misdemeanor charge carries up to one year in county jail. For felony grand theft, you may be sentenced up to three years of incarceration.

Legal Defenses (PC 488):

In a typical grand theft case, our attorneys will strive to prove several factors: that you did not intend to steal, you took the alleged stolen property because it actually belongs to you, and the person who the item was taken from gave you consent to do so, and/or that you are falsely accused of a crime you did not intend to commit.

California

“Grand theft is committed when the value of stolen property exceeds $950. Theft is also considered grand theft when more than $250 in crops or marine life-forms are stolen, “when the property is taken from the person of another,” or when the property stolen is an automobile, farm animal, or firearm. There are a number of criminal statutes in the California Penal Code defining grand theft in different amounts. Most common amount is $950.00.” –wikipedia

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Identity Theft

Identity Theft (PC 530.5):

Identity theft is one of the fastest growing crimes in California. Identity theft is essentially the taking of another person’s identify for use in an unlawful or fraudulent manner. Several unlawful examples of identity theft include (but are not limited to): to secure a personal financial benefit by using another person’s bank information to obtain a monetary gain, to cause the victim whose identity has been stolen to suffer a financial or emotional loss, or to escape criminal liability by using another person’s identifying information.

Penalties (PC 530.5):

Identity theft in California is considered a “wobbler,” giving the prosecutor the decision as to whether charge you with a misdemeanor or a felony.

  • If convicted with a felony under this statute, you can expect to serve up to three years in county jail and/or pay fines up to $10,000.
  • If convicted with a misdemeanor under this statute, you can expect to serve up to one year in county jail and/or pay a maximum fine of $1,000.
  • If you are convicted by the federal government, you face increased fines and up to 30 years in federal prison.

Legal Defenses (PC 530.5):

In order to be prosecuted with identity theft, the prosecutor must prove that you had criminal intent, and that there was an unlawful purpose in carrying out the crime. You may be the victim of mistaken identity or be falsely accused. Or you may protest that you did not use the information in connection with an unlawful or fraudulent manner. Our team of experienced defense attorney’s will review the evidence against you to create the best possible defense on your behalf.

IDENTITY THEFT

Identity theft is someone taking personal information like your name, Social Security number, or financial account number and using it for an unlawful purpose. Everyday people, business owners, well-known celebrities, and children are prey to it. In California, all forms of identity theft are crimes (Penal Code section 530.5 et. seq.).

Identity thieves do many things in a victim’s name. They open new credit accounts, take out auto loans, enjoy medical services (and make insurance claims), and even commit crimes and generate criminal records.

Identity Theft Impacts

Identity theft does not discriminate. There were 13.1 million U.S. adult victims in 2013, or nearly one victim every two seconds. That figure represents 5.5% of U.S. adults, including over a 1.6 million Californians. The number of victims increased from 12.6 million in 2012.

Identity theft is also expensive. The total cost of identity theft in 2013 was $18 million, down from $21 million in 2012 . The decrease is the result of a sharp increase in the share of fraud involving existing credit/debit card accounts, which is less costly than other forms of identity theft.

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Petty Theft/Shoplifting

petty-theft

Petty Theft (PC 484) & Shoplifting (PC 459.5)

There are many forms of theft under California law. Theft, in the simplest form, is the unlawful taking of someone else’s property. When the property is valued under $950, the crime is considered petty theft under Penal Code 484. The separate offense of shoplifting, defined as Penal Code 495.5, is when a person enters a commercial establishment with the intent to steal store items worth less than $950.

Penalties (PC 484/459.5):

Penal Code(s) 484 or 459.5 are treated as misdemeanors. For first-timers, the usual punishment is up to six months in county jail and/or fines up to $1,000. In many cases, you may also be barred from ever entering the commercial establishment where you committed the crime.

Legal Defenses (PC 484/459.5):

Our criminal defense attorneys can use several defenses to get your charges reduced or dismissed. Maybe you did not intend to steal or shoplift the item, or you may claim that the item actually belonged to you. The most important element that must be proven is that you intended to steal. Without intent to steal, prosecutors will not have a strong case to convict you.

Legal Definitions:

484. (a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who shall
fraudulently appropriate property which has been entrusted to him or
her, or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property, or who causes or procures
others to report falsely of his or her wealth or mercantile character
and by thus imposing upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or property or
obtains the labor or service of another, is guilty of theft. In
determining the value of the property obtained, for the purposes of
this section, the reasonable and fair market value shall be the test,
and in determining the value of services received the contract price
shall be the test. If there be no contract price, the reasonable and
going wage for the service rendered shall govern. For the purposes
of this section, any false or fraudulent representation or pretense
made shall be treated as continuing, so as to cover any money,
property or service received as a result thereof, and the complaint,
information or indictment may charge that the crime was committed on
any date during the particular period in question. The hiring of any
additional employee or employees without advising each of them of
every labor claim due and unpaid and every judgment that the employer
has been unable to meet shall be prima facie evidence of intent to
defraud.
(b) (1) Except as provided in Section 10855 of the Vehicle Code,
where a person has leased or rented the personal property of another
person pursuant to a written contract, and that property has a value
greater than one thousand dollars ($1,000) and is not a commonly used
household item, intent to commit theft by fraud shall be rebuttably
presumed if the person fails to return the personal property to its
owner within 10 days after the owner has made written demand by
certified or registered mail following the expiration of the lease or
rental agreement for return of the property so leased or rented.
(2) Except as provided in Section 10855 of the Vehicle Code, where
a person has leased or rented the personal property of another
person pursuant to a written contract, and where the property has a
value no greater than one thousand dollars ($1,000), or where the
property is a commonly used household item, intent to commit theft by
fraud shall be rebuttably presumed if the person fails to return the
personal property to its owner within 20 days after the owner has
made written demand by certified or registered mail following the
expiration of the lease or rental agreement for return of the
property so leased or rented.
(c) Notwithstanding the provisions of subdivision (b), if one
presents with criminal intent identification which bears a false or
fictitious name or address for the purpose of obtaining the lease or
rental of the personal property of another, the presumption created
herein shall apply upon the failure of the lessee to return the
rental property at the expiration of the lease or rental agreement,
and no written demand for the return of the leased or rented property
shall be required.
(d) The presumptions created by subdivisions (b) and (c) are
presumptions affecting the burden of producing evidence.
(e) Within 30 days after the lease or rental agreement has
expired, the owner shall make written demand for return of the
property so leased or rented. Notice addressed and mailed to the
lessee or renter at the address given at the time of the making of
the lease or rental agreement and to any other known address shall
constitute proper demand. Where the owner fails to make such written
demand the presumption created by subdivision (b) shall not apply.

484.1. (a) Any person who knowingly gives false information or
provides false verification as to the person’s true identity or as to
the person’s ownership interest in property or the person’s
authority to sell property in order to receive money or other
valuable consideration from a pawnbroker or secondhand dealer and who
receives money or other valuable consideration from the pawnbroker
or secondhand dealer is guilty of theft.
(b) Upon conviction of the offense described in subdivision (a),
the court may require, in addition to any sentence or fine imposed,
that the defendant make restitution to the pawnbroker or secondhand
dealer in an amount not exceeding the actual losses sustained
pursuant to the provisions of subdivision (c) of Section 13967 of the
Government Code, as operative on or before September 28, 1994, if
the defendant is denied probation, or Section 1203.04, as operative
on or before August 2, 1995, if the defendant is granted probation or
Section 1202.4.
(c) Upon the setting of a court hearing date for sentencing of any
person convicted under this section, the probation officer, if one
is assigned, shall notify the pawnbroker or secondhand dealer or coin
dealer of the time and place of the hearing.

484b. Any person who receives money for the purpose of obtaining or
paying for services, labor, materials or equipment and willfully
fails to apply such money for such purpose by either willfully
failing to complete the improvements for which funds were provided or
willfully failing to pay for services, labor, materials or equipment
provided incident to such construction, and wrongfully diverts the
funds to a use other than that for which the funds were received,
shall be guilty of a public offense and shall be punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
a county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by both that fine and that
imprisonment if the amount diverted is in excess of two thousand
three hundred fifty dollars ($2,350). If the amount diverted is less
than or equal to two thousand three hundred fifty dollars ($2,350),
the person shall be guilty of a misdemeanor.

484c. Any person who submits a false voucher to obtain construction
loan funds and does not use the funds for the purpose for which the
claim was submitted is guilty of embezzlement.

484d. As used in this section and Sections 484e to 484j, inclusive:
(1) “Cardholder” means any person to whom an access card is issued
or any person who has agreed with the card issuer to pay obligations
arising from the issuance of an access card to another person.
(2) “Access card” means any card, plate, code, account number, or
other means of account access that can be used, alone or in
conjunction with another access card, to obtain money, goods,
services, or any other thing of value, or that can be used to
initiate a transfer of funds, other than a transfer originated solely
by a paper instrument.
(3) “Expired access card” means an access card which shows on its
face it has elapsed.
(4) “Card issuer” means any person who issues an access card or
the agent of that person with respect to that card.
(5) “Retailer” means every person who is authorized by an issuer
to furnish money, goods, services, or anything else of value upon
presentation of an access card by a cardholder.
(6) An access card is “incomplete” if part of the matter other
than the signature of the cardholder which an issuer requires to
appear on the access card before it can be used by a cardholder has
not been stamped, embossed, imprinted, or written on it.
(7) “Revoked access card” means an access card which is no longer
authorized for use by the issuer, that authorization having been
suspended or terminated and written notice thereof having been given
to the cardholder.
(8) “Counterfeit access card” means any access card that is
counterfeit, fictitious, altered, or forged, or any false
representation or depiction of an access card or a component thereof.
(9) “Traffic” means to transfer or otherwise dispose of property
to another, or to obtain control of property with intent to transfer
or dispose of it to another.
(10) “Card making equipment” means any equipment, machine, plate,
mechanism, impression, or other device designed, used, or intended to
be used to produce an access card.

484e. (a) Every person who, with intent to defraud, sells,
transfers, or conveys, an access card, without the cardholder’s or
issuer’s consent, is guilty of grand theft.
(b) Every person, other than the issuer, who within any
consecutive 12-month period, acquires access cards issued in the
names of four or more persons which he or she has reason to know were
taken or retained under circumstances which constitute a violation
of subdivision (a), (c), or (d) is guilty of grand theft.
(c) Every person who, with the intent to defraud, acquires or
retains possession of an access card without the cardholder’s or
issuer’s consent, with intent to use, sell, or transfer it to a
person other than the cardholder or issuer is guilty of petty theft.
(d) Every person who acquires or retains possession of access card
account information with respect to an access card validly issued to
another person, without the cardholder’s or issuer’s consent, with
the intent to use it fraudulently, is guilty of grand theft.

484f. (a) Every person who, with the intent to defraud, designs,
makes, alters, or embosses a counterfeit access card or utters or
otherwise attempts to use a counterfeit access card is guilty of
forgery.
(b) A person other than the cardholder or a person authorized by
him or her who, with the intent to defraud, signs the name of another
or of a fictitious person to an access card, sales slip, sales
draft, or instrument for the payment of money which evidences an
access card transaction, is guilty of forgery.

484g. Every person who, with the intent to defraud, (a) uses, for
the purpose of obtaining money, goods, services, or anything else of
value, an access card or access card account information that has
been altered, obtained, or retained in violation of Section 484e or
484f, or an access card which he or she knows is forged, expired, or
revoked, or (b) obtains money, goods, services, or anything else of
value by representing without the consent of the cardholder that he
or she is the holder of an access card and the card has not in fact
been issued, is guilty of theft. If the value of all money, goods,
services, and other things of value obtained in violation of this
section exceeds nine hundred fifty dollars ($950) in any consecutive
six-month period, then the same shall constitute grand theft.

484h. Every retailer or other person who, with intent to defraud:
(a) Furnishes money, goods, services or anything else of value
upon presentation of an access card obtained or retained in violation
of Section 484e or an access card which he or she knows is a
counterfeit access card or is forged, expired, or revoked, and who
receives any payment therefor, is guilty of theft. If the payment
received by the retailer or other person for all money, goods,
services, and other things of value furnished in violation of this
section exceeds nine hundred fifty dollars ($950) in any consecutive
six-month period, then the same shall constitute grand theft.
(b) Presents for payment a sales slip or other evidence of an
access card transaction, and receives payment therefor, without
furnishing in the transaction money, goods, services, or anything
else of value that is equal in value to the amount of the sales slip
or other evidence of an access card transaction, is guilty of theft.
If the difference between the value of all money, goods, services,
and anything else of value actually furnished and the payment or
payments received by the retailer or other person therefor upon
presentation of a sales slip or other evidence of an access card
transaction exceeds nine hundred fifty dollars ($950) in any
consecutive six-month period, then the same shall constitute grand
theft.

484i. (a) Every person who possesses an incomplete access card,
with intent to complete it without the consent of the issuer, is
guilty of a misdemeanor.
(b) Every person who, with the intent to defraud, makes, alters,
varies, changes, or modifies access card account information on any
part of an access card, including information encoded in a magnetic
stripe or other medium on the access card not directly readable by
the human eye, or who authorizes or consents to alteration, variance,
change, or modification of access card account information by
another, in a manner that causes transactions initiated by that
access card to be charged or billed to a person other than the
cardholder to whom the access card was issued, is guilty of forgery.
(c) Every person who designs, makes, possesses, or traffics in
card making equipment or incomplete access cards with the intent that
the equipment or cards be used to make counterfeit access cards, is
punishable by imprisonment in a county jail for not more than one
year, or by imprisonment pursuant to subdivision (h) of Section 1170.

484j. Any person who publishes the number or code of an existing,
canceled, revoked, expired or nonexistent access card, personal
identification number, computer password, access code, debit card
number, bank account number, or the numbering or coding which is
employed in the issuance of access cards, with the intent that it be
used or with knowledge or reason to believe that it will be used to
avoid the payment of any lawful charge, or with intent to defraud or
aid another in defrauding, is guilty of a misdemeanor. As used in
this section, “publishes” means the communication of information to
any one or more persons, either orally, in person or by telephone,
radio or television, or on a computer network or computer bulletin
board, or in a writing of any kind, including without limitation a
letter or memorandum, circular or handbill, newspaper or magazine
article, or book.

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Burglary

burglary

Burglary – Commercial & Residential (PC 459):

Penal Code 459 defines “burglary” as entering into a locked vehicle, room, or structure, with the intent to commit a felony (or petty theft) once inside. Often referred to as “breaking and entering,” you can be charged with burglary even if there was no forced entry. Examples of burglary include (but are not limited to): breaking into someone’s house to steal jewelry, breaking a car window and stealing the radio, entering a bank with the intent to cash a fraudulent check, or entering a home with the intent of committing felony assault. There are two types of burglary cases, one that happens on residential property and the other on commercial property.

Penalties (PC 459):

Residential burglary is considered “first degree” burglary in California; which is burglary that occurs at any inhabited dwelling, a place where someone lives or sleeps, whether or not it is occupied. First degree burglary is always a felony. If convicted, you may be ordered to serve up to one year in county, and up to six years in California state prison, with fines up to $10,000. A conviction for first degree, residential burglary counts as a strike under California’s Three Strikes Law.

Commercial burglary is considered “second degree” burglary in California- which is burglary that occurs at a location where people are not residing. Commercial burglary is a “wobbler,” the prosecutor can elect to charge you with a misdemeanor or felony. The decision is based on circumstances of the offense with a look into your criminal record, if any. If convicted of a misdemeanor of this manner, you can expect to serve up to 1 year in county jail. A felony conviction can subject you up to 3 years in jail. However, it is important to note that commercial burglary do not count as strikes on your criminal record.

 Legal Defenses (PC 459):

There are numerous defenses our team of criminal attorney’s can present on your behalf. Whether there was a lack of intent present, a mistake of fact, a claim of right, or the presence of police misconduct, we will work with you to find the best defense with the circumstances of your case.

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Embezzlement

Embezzlement

Embezzlement (PC 503):

If you fraudulently appropriate property that belongs to someone else and has been entrusted to you, you can be charged and convicted of embezzlement, even if you borrowed it temporarily.

 Penalties (PC 503):

Depending on the value that was stolen or borrowed, embezzlement in California is punished as California grand theft or California petty theft. Grand theft is when the property was worth more than $950, or is an automobile. This form of embezzlement is treated as a “wobbler,” giving the prosecutor the discretion as to charge you with a misdemeanor or felony. A misdemeanor charge can lead up to 1 year in county jail, while felony grand theft is punishable up to 3 years. Property that is worth less than $950 is a form of petty theft- a misdemeanor punishable by up to 6 months in county jail.

Legal Defenses (PC 503):

In order to be convicted under Penal Code 503 PC, it must be proven that you had criminal intent, were not falsely accused, and that you had no right to the property. We will work with you and the facts of your case to disprove the above notions.

Defenses to Embezzlement Charges

  • Claim of good faith: The defendant openly took the property with a good faith belief of title. However, this defense likely does not apply if the defendant kept the property of another as compensation for debts owed to the defendant.
  • Claim of authority: The defendant can show that the property was properly taken during the scope of duties through a power-of-attorney or trust instrument, or through another arrangement requiring the acts of an agent.
  • No demand: While a demand is not explicitly required by law as an element of the crime, the owner of the property should make a demand or written request for the return of the property. The defendant’s refusal, if any, may reflect the defendant’s criminal intent. If the owner does not make a demand, the defendant may be able to offer a defense of neglect or another non-criminal reason for the lack of return.

– source

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Forgery

forgery

Forgery (PC 470):

You can get arrested for forgery if you knowingly intended to commit any of the following: sign another person’s name on a document, fake someone’s handwriting, change or falsify a legal document (a will or deed), or fake a document pertaining to money, property, or finances. However, you are not guilty of the crime of forgery unless you intended to commit a fraud.

Penalties (PC 470):

In most cases, forgery is a “wobbler” in California. Depending on the circumstances of the case, and the amount of money it is worth, you may be charged with a misdemeanor or a felony. If worth $950 or less, you can be charged with a misdemeanor and be expected to serve a maximum county jail sentence of 1 year. If charged with a felony, the maximum jail sentence is 3 years.

 Legal Defenses (PC 470):

Common legal defenses include: you did not intend to defraud anyone that you were falsely accused, and/or the document that was forged did not deprive anyone else of their legal rights. If you did not intend to defraud someone, you did not commit the California crime of forgery. We will work with the facts of your case to determine the best possible defense to have this charge reduced or dismissed.

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Assault

assault

Assault (PC 240):

Penal Code 240 states that an assault (simple assault) is an attempt to willfully commit violent injury on someone else. It is important to note that “assault” and “battery” are two distinct crimes; whereas in the case of battery, there was actual use of unlawful violence, assault is the attempt to do so.

 Penalties (PC 240):

Penal Code 240 simple assault is a misdemeanor in California. In most simple assault cases, the penalties carry up to 6 months in county jail and/or a fine up to $1,000.

Legal Defenses (PC 240):

In California, you may be charged and convicted of assault even if no one was hurt by your behavior. There are several legal defenses our team of attorneys can work with in order to fight your assault charges. Several defenses include: you were wrongly accused, you did not have the intent to act willfully towards another person, you acted in self-defense, and/or you did not have the ability to inflict force on the other person. There are many instances where you may believe that the only viable option is to use force to defend against danger and/or that the amount of force you used seemed reasonably necessary to defend against that danger.

call_now

Simple Assault in California – Laws & Penalties

Simple assault is a misdemeanor charge under California law. It is the least serious assault related charge.

The definition of simple assault is an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another“.

You do not need to make any physical contact with another person, or cause any injury to be charged and convicted with simple assault.

If you are convicted of misdemeanor simple assault, you could face up to $1,000 in fines and 6 months in jail, under California Law.

Simple Assault – California Penal Code Section 240-241

Simple Battery in California– Laws & Penalties

Simple battery can be charged as a misdemeanor or felony, a determination that is made by the judge.

It is defined as any willful and unlawful use of force or violence upon another person.

If you are convicted of simple battery, you could face up to $2,000 in fines and 6 months in jail, under California Law.

Simple Battery California Penal Code Section 242-243

Assault with a Deadly Weapon in California – Laws & Penalties

Assault with a deadly weapon, (not a firearm, see below) is a felony under California law.

It is defined as an assault in which you use any “deadly weapon” other than a firearm in a manner likely to produce great bodily harm.

Deadly weapon is deliberately not defined, and can be interpreted as broadly as possible. A deadly weapon could be a blunt instrument like a bat or a tire iron, a blade instrument like a knife, or even a moving vehicle if it is alleged you deliberately attempt to hit a person with your car.

If you are convicted of assault with a deadly weapon, you could face up to $10,000 in fines and 4 months in prison, under California Law.

Assault with a Deadly Weapon (not a firearm) California Penal CodeSection 245

Assault with a Firearm in California – Laws & Penalties

Assault with a firearm is similar to California’s assault with a deadly weapon offense, with one significant exception: it  does not have to be committed “in a manner likely to produce bodily harm”.

Just having a firearm or gun on your person or in your possession during the commission of any assault is enough to bring a felony charge of assault with a firearm.

If you are convicted of assault with a firearm, you could face up to $10,000 in fines and 4 months in prison, under California Law.

California Assault and Battery Enhancements and Aggregating Factors

All assault offenses have enhancements, exceptions, and aggravating factors the can increase penalties. These factors can be where the incident took place, such as on the grounds of a school, in a hospital or prison, or who the act was committed against.

Penalties will be increased if you commit an assault against a:

  • police officer
  • public safety officer or firefighter
  • teacher
  • prison guard
  • government official
  • highway worker
  • bus driver, cab driver or transit operator
  • many other special cases and enhancements

Please contact us for details on other special cases and penalty enhancements you may be charged with.” –source

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Assault with Deadly Weapon

assault deadly weapon

Assault with Deadly Weapon “ADW” (PC 245):

The California crime of assault with a deadly weapon is defined under Penal Code 245 as an act committed with a so-called “deadly weapon,” or by means of force to produce great bodily injury.

 Penalties (PC 245):

This crime is considered a “wobbler,” meaning that the prosecutor may charge you with a misdemeanor or felony as it depends on the circumstances of the case. Key factors include: the type of weapon used, whether the victim sustained an injury, and whether the victim was a police officer, firefighter, or other protected individual.

If charged with a misdemeanor, you can expect to serve one year in county jail. If charged with a felony, you can expect to serve anywhere between 2-4 years in state prison.

Legal Defenses (PC 245):

One of the surprising factors of being charged with ADW is that you can be convicted of this crime even if no one sustained any injuries. Several defenses include: you were wrongly accused, you did not have the intent to act willfully towards another person, you acted in self-defense, and/or you did not have the ability to inflict force on the other person. There are many instances where you may believe that the only viable option is to use force to defend against danger and/or that the amount of force you used seemed reasonably necessary to defend against that danger.

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Assault (Great Bodily Injury)

assault great bodily injury

Assault with Great Bodily Injury (PC 240(a)):

Assault with “great bodily injury” refers to significant and substantial physical injuries. Emotional and financial do not fall under this category, nor do insignificant or even moderate injuries. It is also important to note that the injury does not have to be permanent or severe. However, damages such as brain damage or paralysis do fall under PC 240(a). What constitutes as a GBI is determined by several key factors: the severity of the injury, the resulting pain, and/or any required medical care.

There are certain crimes you can be charged with that include an additional GBI penalty. For example, if you receive a “UI causing injury” charge, and the car accident led to another person (who survived the accident) to suffer great bodily injury, you could receive a GBI enhancement.

Legal Definitions

245. (a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm shall
be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(2) Any person who commits an assault upon the person of another
with a firearm shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not less than
six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another
with a machinegun, as defined in Section 16880, or an assault weapon,
as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
in Section 30530, shall be punished by imprisonment in the state
prison for 4, 8, or 12 years.
(4) Any person who commits an assault upon the person of another
by any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
(b) Any person who commits an assault upon the person of another
with a semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.
(c) Any person who commits an assault with a deadly weapon or
instrument, other than a firearm, or by any means likely to produce
great bodily injury upon the person of a peace officer or
firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his
or her duties, when the peace officer or firefighter is engaged in
the performance of his or her duties, shall be punished by
imprisonment in the state prison for three, four, or five years.
(d) (1) Any person who commits an assault with a firearm upon the
person of a peace officer or firefighter, and who knows or reasonably
should know that the victim is a peace officer or firefighter
engaged in the performance of his or her duties, when the peace
officer or firefighter is engaged in the performance of his or her
duties, shall be punished by imprisonment in the state prison for
four, six, or eight years.
(2) Any person who commits an assault upon the person of a peace
officer or firefighter with a semiautomatic firearm and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the
peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison
for five, seven, or nine years.
(3) Any person who commits an assault with a machinegun, as
defined in Section 16880, or an assault weapon, as defined in Section
30510 or 30515, or a .50 BMG rifle, as defined in Section 30530,
upon the person of a peace officer or firefighter, and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, shall be
punished by imprisonment in the state prison for 6, 9, or 12 years.
(e) When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument or firearm, and
the weapon or instrument or firearm is owned by that person, the
court shall order that the weapon or instrument or firearm be deemed
a nuisance, and it shall be confiscated and disposed of in the manner
provided by Sections 18000 and 18005.
(f) As used in this section, “peace officer” refers to any person
designated as a peace officer in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2.

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Arson

arson

Arson (PC 451/452):

California’s arson laws make it a crime to willfully or recklessly set fire to any building, forest land, or property. Acting in a reckless manner is often called “reckless burning” or “reckless arson.” It is also a crime to set fire to your own property on fire if your property is a form of real estate, if you do it for a fraudulent purpose or if it causes injury to another person or another person’s property, land, or home.

Penalties (PC 451/452):

The penalties for arson or reckless burning depend on certain key factors. For instance, it depends on the type of property that was burned, whether or not someone was injured due to the fire, and if it was done in a willful or reckless manner. The lesser crime, “reckless burning” is considered a misdemeanor under California law. However, it becomes a “wobbler” if you burn a building or forest land, or if the act causes great bodily injury to someone other than yourself. Being a “wobbler,” the prosecutor has the discretion as to whether charge you with a misdemeanor or felony.

Basic reckless burning is a misdemeanor charge and it usually carries up to six months in county jail and/or fines up to $1,000. Reckless burning that is treated as a felony case carries up to 2 to 3 years in state prison. For reckless burning that causes great bodily injury, you can be expected to serve 1 year in county jail under a misdemeanor charge and 2 to 4 years in state prison if treated as a felony.

It is a felony to willfully and maliciously set fire to a building, forest land, or property. If in the process of committing the crime of arson, you accidently kill someone, you may be subject to Penal Code 187 murder under California’s “felony-murder rule.”

Under the law of aggravated arson, you may face enhanced sentencing of 1 to 5 years in state prison if any of the following factors exist: if you have a prior conviction of arson on your criminal record, if a firefighter or other emergency personnel suffers great bodily injury because of the fire, if more than one individual suffers great bodily injury as a result, and/or if you cause multiple structures to burn. If you are convicted of malicious arson or attempted malicious arson, you must also register as a convicted California arson offender.

Legal Defenses (PC 451/452):

In order to be convicted of arson, the prosecutor must prove that you acted maliciously or recklessly. The best legal defense in fighting an arson charge is to prove that the fire was a result of an accident, and that it was unintended and it was a noncriminal accident. However, it is very difficult to prove it was an accident if you were under the influence. However, most arson cases are built on circumstantial evidence, making it easy for defense attorneys to prove that you were not the one responsible.

 

 

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Child Abuse/Endangerment

Child Abuse

Child Abuse/Endangerment (PC 273 (d)/PC 273 (a)):

Penal Code 273(d) is known as “Corporal Injury on a Child,” or more commonly known as “Child Abuse.” There is also PC 273 (a), known as Child Endangerment, which differs from Child Abuse (where there must be physical harm done to the child). To be convicted under PC 273 (d) Child Abuse, the prosecutor must prove that you willfully (on purpose) inflicted upon a child cruel or unusual (physical) punishment, with an injury resulting in a traumatic condition.

Child endangerment is considered a domestic violence offense and to be convicted under PC 273 (a) Child Endangerment, a prosecutor must show several factors: the defendant was criminally negligent, he/she did not act reasonably in disciplining a child, there were conditions present that could likely produce great bodily harm, and that the defendant intentionally inflicted cruel or unusual punishment while the child was in his/her custody. For example, if a woman who in care of her infant allows her boyfriend to stay in her home and during his stay finds unusual bruises and injuries on her child, this woman can be prosecuted under child endangerment for she willingly allowed the child to be in this situation by allowing her boyfriend to stay in the same home.

Penalties (PC 273 (d)/PC 273 (a)):

If convicted of 273 (d) Child Abuse, the prosecutor will decide whether to treat your case as either a misdemeanor or felony violation. If convicted of misdemeanor 273 (d), you may face up to a year in county jail, fines around $5,000, probation for 3 years, successful completion of a child abuser treatment program, and/or there will be a protective order to protect the child from future harm.

If convicted of 273 (d) Child Abuse, felony, you may face up to 6 years in California State Prison, up to $6,000 in fines, formal probation for a minimum of 3 years, all the terms and conditions of a misdemeanor conviction, and additional years in state prison if convicted of the same offense in a ten year period.

To be convicted of a misdemeanor under PC 273 (a) Child Endangerment, the defendant can be sentenced up to 6 months in county jail, court fines, and parenting classes. Treated as a “wobbler,” if the child endangerment involved great bodily harm or death, the prosecutor will likely charge you with a felony. If charged as a felony, the defendant can be sentenced up to 4 years in prison. If the child suffers a death due to your actions, the prosecutor may file serious manslaughter or murder charges.

Legal Defenses (PC 273 (d)/PC 273 (a)):

If you are charged with child abuse- whether it be physical, emotional, or sexual- our defense team can devise a sound strategy to help cast doubt on the prosecution’s case against you. Child abuse laws aim to protect children and defending yourself against a child abuse/child endangerment charge could be quite difficult, especially if there is testimony by the child involved. While parents are generally given leniency on how to raise their own, there are limits as to what parents can and cannot do. It is also quite common for ‘false accusations’ to be brought by one parent against the other, especially in child custody disputes between parents.

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Domestic Violence

Domestic Violence

Domestic Violence (PC 273.5):

California domestic violence laws make it illegal to use physical force or to communicate threats of harm against an intimate partner or cohabitant. Common DV crimes include (but are not limited to): PC 243(e)(1) pc Domestic Battery, PC 273d pc Child Abuse, PC 368 Elder Abuse, PC 422 Criminal Threats, and PC 273.5 Corporal Injury to a Spouse or Cohabitant.

California DV laws also present serious legal issues for immigrants who are not United States citizens. Most DV offenses are crimes of ‘moral turpitude’ and a conviction will most likely result in deportation and lose the opportunity to eventually naturalize.

Penalties (PC 273.5):

The penalty and punishment under California domestic violence law depends on two factors: the seriousness of the injuries and the defendant’s criminal record. Judges will more than likely require that defendants attend a year long domestic batterers class. Most counties impose at least a 30 day jail sentence, even for first-time misdemeanor convictions. Most importantly, a California DV conviction goes on one’s permanent criminal record, which will be visible during any routine background check. This can make it difficult to gain employment and/or receive benefits.

Legal Defenses (PC 273.5):

Whether you are wrongly accused, you acted in self-defense, or you claim that the incident was an accident, we will work with you and the circumstances of your case to get the charges reduced or dismissed, and keep your criminal record clean.

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False Imprisonment

false imprisonment

False Imprisonment (PC 236):

In order to be guilty of False Imprisonment in the state of California, the prosecutor must show that two factors were present, the defendant intentionally restrained another person or confined another person by violence and/or threats of violence, and, the defendant made the other person stay in a confined place or made the victim go somewhere, against his/her consent and/or without legal justification.

 Penalties (PC 236):

False Imprisonment can be charged as a felony or a misdemeanor under Penal Code 236. If charged with a misdemeanor, the defendant can expect to serve up to 1 year in county jail. If charged with a felony, the defendant can expect to serve up to 3 years in California State Prison. However, in addition to the jail terms, there are other severe consequences in being charged with false imprisonment. For example, there are fines, immigration consequences, employment loss, civil lawsuits, increased insurance rates, mandatory rehabilitation classes, restraining orders and more.

Two closely related crimes to False Imprisonment include: Penal Code 237 PC, False Imprisonment with violence- it is considered a felony or misdemeanor with a maximum sentence of 3 years. Penal Code 210.5 PC, False Imprisonment of a hostage- it is considered a felony, with a maximum of 8 years.

Legal Defenses (PC 236):

There are many defenses to the crime of false imprisonment depending on the circumstances of each case. It is very possible to reduce false imprisonment charges to a less severe charge or to reduce the amount of jail time associated with the charge.

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Gang Related Crimes/Gang Enhancements

Gang

Gang-Related Violence/Gang Enhancements (PC 186.22):

Penal Code 186.22(a) is the crime of participation in a gang and Penal Code 186.22(b) is defined as the gang sentencing enhancement. The second part (b) is an actual sentence enhancement (an addition to the penalty) for anyone who commits a felony for the benefit of the crew. The first part of the law makes it illegal for anyone to participate in a street crew and/or assist in any felony criminal conduct.

California law punishes crew members on a grand scale and much more harshly than those people who have no gang ties; Penal Code 186.22 is part of the “STEP Act” (California Street Terrorism Enforcement and Prevention Act), which punishes gang members, and those who associate with gang members. In order to be convicted under Penal Code 186.22(a), these three elements of the crime must exist: that you actively participated in a criminal street gang, you know of the gang’s criminal activity and the members engaged in it, and you willfully assisted/promoted felonious criminal conduct by gang members.

Penalties (PC 186.22):

The participation in a criminal street gang (PC 186.22(a)) is a wobbler in California law; the prosecutor decides whether to charge you with a felony or misdemeanor. The maximum sentence you can receive if convicted under 186.22(a) PC is 1 year in county jail and/or fines up to $1,000.

If you are convicted of a felony, you may face 16 months to 2 years in the California State Prison. Penal Code 186.22(b) sets forth the actual California criminal gang sentencing enhancement. Assuming that the prosecutor can prove all the “elements” of the sentencing enhancement, a PC 186.22(b) conviction could mean anywhere from 2 to 15 years, or even 25 years-to-life, in prison.

 Legal Defenses (PC 186.22):

Potential legal defenses that can be used against a Penal Code 186.22 PC charge include (but are not limited to): arguing that you did not commit the underlying felony, that you are not an “active participant” in a criminal street gang, that you were not acting for the benefit of the crew, and/or arguing that the gang sentencing enhancement would go against “the interests of justice.”

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Juvenile Crimes

juvenile

Juvenile Crimes

Juvenile crimes are any crimes committed by a person under the age of 18 being handled in the Juvenile Court system. The Juvenile Court system seeks to rehabilitate young offenders rather than punish them so it offers a wide range of jail alternatives, including:

  • Treatment programs
  • School-based programs
  • Social service programs
  • Juvenile detention
  • Probation
  • Community service

If your young person is involved with the California juvenile justice system, you need a strong legal advocate on your side to see that your child and your family comes out of this with the best chance for a good future.

We have been representing juveniles facing all types of criminal charges, both in California Juvenile Court and in adult courts, for many years. You won’t find many attorneys with more experience than we have in criminal defense. We’ve represented young people charged with:

  • Theft crimes, including auto theft, joyriding, shoplifting, petty theft, and burglary
  • Trespassing
  • Underage drinking and drunk driving
  • Drug crimes, such as possession of marijuana, possession of meth, possession with intent to sell, and distribution and manufacture of drugs
  • Sex crimes, including date rape, sexual battery, and child molestation
  • Gang-related crimes
  • Weapons offenses
  • Juvenile violent crimes, such as assault and battery, assault with a deadly weapon, kidnapping, manslaughter or murder

Depending upon the severity of the crime, the young person’s history of criminal offenses and the strength of the case, many young people will find alternatives to jail time available to them.

What to do as a parent

If your child is involved in a juvenile delinquency case that means he or she is accused of breaking the law.

The court will consider how old your child is, how serious the crime is, and the child’s criminal record if any. The court can order that:

  • Your child live with you under court supervision.
  • Your child be put on probation. He or she may have to live with a relative, in a foster home or group home, or in an institution.
  • Your child be put on probation and sent to a probation camp or ranch.
  • Your child can be sent to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (also called “DJJ”). If your child is tried in adult court, he or she will be sent to the Department of Corrections and Rehabilitation, Division of Adult Operations (also called “CDCR”).

If your child is sent to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), he or she will go to a “reception center” for the first 30 to 90 days. The center will find out what education and treatment your child needs. Then your child will go a correctional facility or youth camp.

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Resisting Arrest

resisting arrest

Resisting Arrest (PC 148(a)(1)):

California Penal Code 148(a)(1) describes the crime most commonly referred to as “resisting arrest.” In California, “resisting arrest” law prohibits you from willfully obstructing, delaying or resisting a law enforcement officer or emergency medical technician (EMT) while he/she is performing his/her duties.

Penalties (PC 148):

Resisting arrest in California is a misdemeanor. You can receive up to 1 year in county jail and/or a maximum $1,000 fine.

Legal Defenses (PC 148):

Having a Penal Code 148 PC conviction on your record could turn any future encounter with a police officer into a negative one. Potential legal defenses to resisting arrest charges include (but are not limited to): you were acting in self-defense, you were falsely accused and/or your arrest was wrongful and/or the police were engaged in police misconduct.

142. (a) Any peace officer who has the authority to receive or
arrest a person charged with a criminal offense and willfully refuses
to receive or arrest that person shall be punished by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in a
county jail not exceeding one year, or pursuant to subdivision (h) of
Section 1170, or by both that fine and imprisonment.
(b) Notwithstanding subdivision (a), the sheriff may determine
whether any jail, institution, or facility under his or her direction
shall be designated as a reception, holding, or confinement
facility, or shall be used for several of those purposes, and may
designate the class of prisoners for which any facility shall be
used.
(c) This section shall not apply to arrests made pursuant to
Section 837.

145. Every public officer or other person, having arrested any
person upon a criminal charge, who willfully delays to take such
person before a magistrate having jurisdiction, to take his
examination, is guilty of a misdemeanor.

145.5. (a) (1) Subject to paragraph (2), notwithstanding any law to
the contrary, no agency of the State of California, no political
subdivision of this state, no employee of an agency, or a political
subdivision, of this state acting in his or her official capacity,
and no member of the California National Guard on official state duty
shall knowingly aid an agency of the armed forces of the United
States in any investigation, prosecution, or detention of a person
within California pursuant to (A) Sections 1021 and 1022 of the
National Defense Authorization Act for Fiscal Year 2012 (NDAA), (B)
the federal law known as the Authorization for Use of Military Force
(Public Law 107-40), enacted in 2001, or (C) any other federal law,
if the state agency, political subdivision, employee, or member of
the California National Guard would violate the United States
Constitution, the California Constitution, or any law of this state
by providing that aid.
(2) Paragraph (1) does not apply to participation by state or
local law enforcement or the California National Guard in a joint
task force, partnership, or other similar cooperative agreement with
federal law enforcement if that joint task force, partnership, or
similar cooperative agreement is not for the purpose of
investigating, prosecuting, or detaining any person pursuant to (A)
Sections 1021 and 1022 of the NDAA, (B) the federal law known as the
Authorization for Use of Military Force (Public Law 107-40), enacted
in 2001, or (C) any other federal law, if the state agency, political
subdivision, employee, or member of the California National Guard
would violate the United States Constitution, the California
Constitution, or any law of this state by providing that aid.
(b) It is the policy of this state to refuse to provide material
support for or to participate in any way with the implementation
within this state of any federal law that purports to authorize
indefinite detention of a person within California. Notwithstanding
any other law, no local law enforcement agency or local or municipal
government, or the employee of that agency or government acting in
his or her official capacity, shall knowingly use state funds or
funds allocated by the state to local entities on or after January 1,
2013, in whole or in part, to engage in any activity that aids an
agency of the armed forces of the United States in the detention of
any person within California for purposes of implementing Sections
1021 and 1022 of the NDAA or the federal law known as the
Authorization for Use of Military Force (Public Law 107-40), enacted
in 2001, if that activity would violate the United States
Constitution, the California Constitution, or any law of this state.

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Child Pornography

child pornography

Child Pornography (PC 311.11):

Child Pornography is a criminal defense that is defined as any visual depiction involving the use of a minor, or one appearing to be a minor, engaging in a sexually explicit conduct. Visual depictions include video, pictures, drawings, animations, film, photographs or computer-generated images or pictures. Child Pornography has become problematic due to the Internet and technological advances. In addition, altering a photo or video to depict a minor in a sexually explicit way could also be considered Child Pornography (for example, editing the face of a minor onto a nude body of an adult).

Under this statute, a minor is any person under the age of 18 years old. Also, it is a crime under this statute to knowingly possess, distribute, receive, or possess with the intent to distribute, any form of child pornography; even if you were not the one who produced the pornography.

 Penalties (PC 311.11):

Child Pornography is both a federal and state crime. In regards to the federal government, Child pornographers can be prosecuted by the FBI, the Department of Justice, the U.S. Postal Inspection Service, U.S. Customs, and the U.S. Attorney General. Child pornography convictions can result in 15 years in federal prison as well as the lifetime sex offender registration requirement. In the State of California, a PC 311 conviction could lead to a 6 year prison sentence and up to $100,000 in fines.

Legal Defenses (PC 311.11):

Defenses to child pornography may include: entrapment, undisputable innocent and/or mistakes. Many people would never intentionally distribute or facilitate child pornography; therefore, this is a charge worth fighting if you find yourself under these circumstances.

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Lewd Acts with a Child/Child Molestation

lewd acts

Lewd Acts with a Child/Child Molestation (PC 288):

Child Molestation is a serious charge that carries serious legal and social consequences. An accusation of this nature can ruin an innocent person’s life. While there are many types of child molestation, almost any conviction will result in having to register as a sex offender for life. The charge under Penal Code 288 PC makes it illegal to touch a child under the age of 14 with sexual intent. Even “touching” a child through clothing is a crime under this section. According to the law, a child under 14 cannot consent, therefore making a consensual defense in implausible under this section.

When these acts are committed against a child 16 or 17 years old, it is no longer considered child molestation; it will be prosecuted as statutory rape or sexual battery. However, both charges require the accused to be subject to the lifetime sex offender registration.

Penalties (PC 288):

Perhaps the most severe consequence of being convicted under this statute is that a PC 288 conviction triggers a lifetime duty to register as a sex offender. Any conviction under PC 288 will result in this mandatory requirement.

If convicted of lewd acts upon a child under the age of 14, the offense is considered a felony with a sentence of 3 to 8 years in a California State Prison. If any force was used on the child involved, you could face anywhere between 5 to 10 years in a California State Prison. When the act(s) are committed against a child age 14 or 15, and the accused is at least 10 years older than the child, then you could face anywhere from 1 to 3 years in county jail.

Legal Defenses (PC 288):

Common defenses to a PC 288 charge include (but are not limited to): the accuser is mistaken or fabricated the truth, the contact was accidental, and that were was no intent to cause sexual arousal. We have also found in some cases there is a third party involved, in which the third party “coaches” the child into making a false allegation of sexual conduct.

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Lewd Conduct

lewd conduct

Engaging in or Soliciting Lewd Conduct in Public (PC 647 (a)):

Under Penal Code 647 (a), it is illegal to engage in lewd or dissolute conduct in any place, or to solicit someone else to do so. Lewd conduct is defined as touching your private parts (or another person’s private parts) with the intention of receiving sexual gratification or to annoy or offend someone else. Private parts refer to: genitals, buttocks, or female breasts.

Penalties (PC 647 (a)):

A violation of PC 647 (a) is a misdemeanor and is punishable by up to 6 months in county jail and/or a fine up to $1,000. If prosecutors decide add a PC 314 “Indecent Exposure” charge, then you will have to abide to the lifetime sex offender registration requirement.

Legal Defenses (PC 647 (a)):

Legal defenses to lewd conduct include (but are not limited to): You were not in a public place or in a place open to public view, you reasonable believed no one was present who would be offended by your actions, you did not touch the private parts for sexual gratification, and/or you did not actually touch your private parts or someone else’s.

1. The legal definition of “lewd or dissolute conduct in public”

You violate California Penal Code 647(a) when:

  • you engage in… or you solicit anyone to engage in…
  • lewd or dissolute conduct…
  • in any public place or in any place open to the public or exposed to public view.

To establish this, the prosecutor must prove five facts (called “elements of the crime”):

  1. you willfully engaged in the touching of your own or another person’s genitals, buttocks, or a female breast;
  2. you did so with the intent sexually to arouse or gratify yourself or another person, or to annoy or offend another person;
  3. at the time the you did so, you were in a public place or a place open to the public or to public view;
  4. someone else who might have been offended was present; and
  5. you knew or reasonably should have known that another person who might have been offended by your conduct was present.
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Failure to Register as a Sex Offender

sex offender

Failure to Register as a Sex Offender (PC 290 (b)):

If you are required to register under California’s sex offender registration law, and you fail to do so, you may be convicted under CAPC 290, “Failure to Register as a Sex Offender.”

California’s Sex Offender Registration Act (Also known as Megan’s Law), requires anyone who lives in the State of California, post conviction of a California sex crime, to register with the police of the city of residence. In addition, the registration must be renewed every year, within 5 working days of the person’s birthday, and report and renew every time he/she moves to a new address. Knowingly and willfully failing to meet this requirement could land you a PC 290 (b) conviction.

Penalties (PC 290 (b)):

The penalties for PC 290 (b) depend on the underlying offense that required you to register in the first place. If you prior sex offense was a felony or you have one or more prior convictions for this offense, then PC 290 (b) will also be charged as a felony and vice versa.

The potential penalties for misdemeanor failure to register include: Summary probation, up to one year in county jail, and/or fines up to $1,000.

The potential penalties for felony failure to register include: Formal probation, 16 months to 3 years in the California State Prison, and/or fines up to $10,000. In some cases, felony failure to register can count as a third strike under California’s Three Strikes Law, which can get you 25 years to life in state prison.

 Legal Defenses (PC 290 (b)):

There are two common legal defenses that could be used for your favor in arguing a PC 290 (b) charge. First, you could argue that you did not know of your obligation to register, so you did not willfully fail to register. Second, you could argue that you attempted to register, but that your information was lost or not received. There have been many cases where a convicted sex offender follows through on his/her registration obligations- but- the reporting police officer manages to “lose” the relevant paperwork and then reports him/her to the District Attorney for failure to register.

 

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Indecent Exposure

indecent exposure

Indecent Exposure (PC 314):

California Penal Code 314 PC makes it unlawful to willfully expose your genitals to someone else with the intent by a desire to sexually gratify yourself or offend the other person. While the law is broad and vague, the statute has remained unchanged since its enactment centuries ago.

Penalties (PC 314):

In most cases, a first indecent exposure conviction may subject you to misdemeanor penalties of up to 6 months in county jail and fines up to $1,000. The second offense will be treated as a felony and can lead to sentencing at the California State Prison. However, a PC 314 conviction can subject you to the lifetime California sex offender registration requirement.

Legal Defenses (PC 314):

There are a variety of legal defense tactics that we can use in order to fight your indecent exposure case. For starters, some defenses may include (but are not limited to): you never actually exposed yourself, that you were not aware that anyone else was present that would be offended, and/or that you were the victim of mistaken identity.

Legal Definitions

Overview of California Indecent Exposure Laws

Exposing yourself innappropriately is a crime against the person under California indecent exposure laws. A prosecutor must prove several elements to convict a defendant for indecent exposure, which falls under the broad category of sex crimes. First, the prosecutor must show that the defendant willfully exposed his or her person or private parts. If the defendant did not know about the exposed private parts or accidentally exposed a body part, the prosecutor likely cannot establish the elements of the crime.

Furthermore, indecent exposure is a crime of specific intent. The defendant must have intended to act for a lewd or obscene purpose. The prosecutor can establish intent by showing that the defendant intended to direct public attention to the defendant’s genitals or that the defendant wanted to achieve sexual arousal, sexual gratification, or sexual affront. The defendant did not have to be completely naked or unclothed to be charged with indecent exposure; the prosecutor only needs to establish that the defendant’s genitals were exposed.

California law also requires that the defendant acted in a public place. A public place might be a location in full view of people passing by. However, a private dwelling or inhabited building might also qualify as a public place for the purposes of indecent exposure if the defendant entered the premises without invitation or later provided the inhabitants with an unwanted display of the defendant’s private parts.

Defenses to Indecent Exposure Charges

  • First Amendment protection of an artistic performance or expression with a non-obscene intent or value

Penalties and Sentences

A first-time charge of indecent exposure may result in a misdemeanor conviction. If the defendant committed indecent exposure after entering a dwelling or the inhabited part of a building without the inhabitant’s consent, the court may sentence the defendant to a term of imprisonment lasting up to one year. Imprisonment may take place in county jail or state prison.

A second-time or subsequent conviction for indecent exposure, or a first-time conviction for indecent exposure after a conviction for another sex crime under California law, is a felony conviction. The felony conviction will likely result in a term of imprisonment in state prison.

California Indecent Exposure Laws: Statute

California Penal Code Section 314

– See more at: http://statelaws.findlaw.com/california-law/california-indecent-exposure-laws.html#sthash.uW0P7527.dpuf

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Prostitution & Solicitation

prostitution

Prostitution & Solicitation (PC 647 (b)):

California prostitution law under Penal Code 647 (b) PC prohibits: engaging in the act of prostitution, and offering (also known as “solicitation) or agreeing to engage in the act of prostitution. Under this statute, police officers are allowed to arrest the prostitute, the customer, and the middleman (otherwise referred to as a “pimp”). The “pimp” may be arrested under Penal Code 266h and 266i PC if he/she participates in soliciting the agreement, receives part or all of a prostitute’s pay, or if he/she participates in procuring the prostitute. Due to political and social pressures, law enforcement agencies typically invest substantial resources in discovering all those involved in prostitution offenses.

 Penalties (PC 647 (b)):

California courts treat a prostitution/solicitation charge(s) as misdemeanors. For first time offenders, the potential penalties include 6 months in county jail and/or fines up to $1,000. Prostitution/solicitation is a “priorable” offense, which means the punishment increases with each subsequent offense. If convicted for a second time, you could expect to serve a minimum of 45 days in county jail. If convicted for the third time, the judge is entitled to require a minimum of 90 days in county jail.

 Legal Defenses (PC 647 (b)):

There are various legal defenses that could be used to fight your prostitution/solicitation charges. Several defenses include (but are not limited to): entrapment, insufficient evidence, lack of evidence and mistaken identity.

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Rape/Statutory Rape

rape

Rape (PC 261):

California’s rape statute defines the crime of “rape” as nonconsensual sexual intercourse through the use of threats, force, or fraud. The sexual intercourse needs to be either against that person’s will, or without that person’s consent (such as, having sex with a female who is passed out drunk). For the act to be constituted as rape, it needs to have been accomplished through one of the following: physical force, violence, duress, menace, fear of bodily harm to oneself, fear of retaliation, and fraud. In order for the prosecutor to prove that you are guilty of rape, he/she must prove these four elements of crime: that you engaged in sexual intercourse with another person, that you were not married to that person at the time of sexual intercourse, that the other person did not consent to the intercourse, and that you accomplished the act by one of the means mentioned above.

Penalties (PC 261):

Rape is a felony under California law. If convicted under Penal Code 261 PC, you may be subject to formal probation or 3, 6, or 8 years in a California State Prison. If the victim sustains a great bodily injury, the judge may impose additional years to be served in a state prison. In addition, you may be required to pay up to $10,000 in fines with a possible “strike” on your record, pursuant to California’s Three Strikes Law.

If the victim is a minor (under the age of 18), the possible state prison term goes up to 7, 9 or 11 years. If the victim is under the age of 14, the possible state prison term goes up to 9, 11, or 13 years in prison. In addition, most California rape convictions lead to required (Penal Code 290) sex offender registration. The registration requirement is a duty that lasts for a lifetime.

Legal Defenses (PC 261):

Many innocent people are wrongly accused of rape all too often. The reason is that the accuser needs little to no evidence. Our defense team will make it a priority to dismiss, from the start, any unjust charges. There is also the defense of “consent,” where the alleged victim will change their story, alleging that they did not consent when they initially did consent to the sexual intercourse. Even if the alleged victim purports that they did not consent, if you had a good enough reason to believe he/she had consented, you cannot be convicted of rape. The legal defense of insufficient evidence may also apply in cases where the victim did not seek medical attention and/or there were no witnesses of the act- resulting in the case being a “he said/she said” ordeal. In situations like this, an insufficient evidence defense may apply.

Statutory Rape (PC 261.5):

More commonly referred to as “unlawful sex with a minor,” under California Penal Code 261.5 PC, “statutory rape” takes place when any person engages in sexual intercourse with a person under the age of 18. Regardless if the sex was consensual, or even initiated by the “victim,” the law makes it illegal to agree to unlawful sex with any person under the age of 18 years old. For example, If a pair of high school sweethearts decide to have sex for the first time and one of them is under the age of 18 and the other over the age of 18, that constitutes as statutory rape. The penalties of statutory rape depend on how the prosecutor decides to treat the case (ie a felony or misdemeanor). One of the main factors is the age of those involved; the wider the age gap, the harsher the penalties.

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Sexual Battery

sexual battery

Penal Code 243.4 defines “sexual battery” as the illegal act of touching an intimate body part of another person for the purpose of sexual gratification, arousal or abuse. Depending on the circumstances, sexual battery can be treated as a misdemeanor or a felony. It may be charged as a felony if the victim was unlawfully restrained or was an institutionalized person. Misdemeanor sexual battery usually carries a sentence of 6 months or 1 year. Felony sexual battery usually carries a sentence of 2, 3 or 4 years. However, both a misdemeanor and felony conviction under this statute subjects you to California’s sex offender registration requirement.

Sexual Battery defined

243.4. (a) Any person who touches an intimate part of another
person while that person is unlawfully restrained by the accused or
an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a
county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who
is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by a
fine not exceeding two thousand dollars ($2,000); or by imprisonment
in the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).
(c) Any person who touches an intimate part of another person for
the purpose of sexual arousal, sexual gratification, or sexual abuse,
and the victim is at the time unconscious of the nature of the act
because the perpetrator fraudulently represented that the touching
served a professional purpose, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a
county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(d) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person’s
will while that person is unlawfully restrained either by the
accused or an accomplice, or is institutionalized for medical
treatment and is seriously disabled or medically incapacitated, to
masturbate or touch an intimate part of either of those persons or a
third person, is guilty of sexual battery. A violation of this
subdivision is punishable by imprisonment in a county jail for not
more than one year, and by a fine not exceeding two thousand dollars
($2,000); or by imprisonment in the state prison for two, three, or
four years, and by a fine not exceeding ten thousand dollars
($10,000).
(e) (1) Any person who touches an intimate part of another person,
if the touching is against the will of the person touched, and is
for the specific purpose of sexual arousal, sexual gratification, or
sexual abuse, is guilty of misdemeanor sexual battery, punishable by
a fine not exceeding two thousand dollars ($2,000), or by
imprisonment in a county jail not exceeding six months, or by both
that fine and imprisonment. However, if the defendant was an employer
and the victim was an employee of the defendant, the misdemeanor
sexual battery shall be punishable by a fine not exceeding three
thousand dollars ($3,000), by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
Notwithstanding any other provision of law, any amount of a fine
above two thousand dollars ($2,000) which is collected from a
defendant for a violation of this subdivision shall be transmitted to
the State Treasury and, upon appropriation by the Legislature,
distributed to the Department of Fair Employment and Housing for the
purpose of enforcement of the California Fair Employment and Housing
Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title
2 of the Government Code), including, but not limited to, laws that
proscribe sexual harassment in places of employment. However, in no
event shall an amount over two thousand dollars ($2,000) be
transmitted to the State Treasury until all fines, including any
restitution fines that may have been imposed upon the defendant, have
been paid in full.
(2) As used in this subdivision, “touches” means physical contact
with another person, whether accomplished directly, through the
clothing of the person committing the offense, or through the
clothing of the victim.
(f) As used in subdivisions (a), (b), (c), and (d), “touches”
means physical contact with the skin of another person whether
accomplished directly or through the clothing of the person
committing the offense.
(g) As used in this section, the following terms have the
following meanings:
(1) “Intimate part” means the sexual organ, anus, groin, or
buttocks of any person, and the breast of a female.
(2) “Sexual battery” does not include the crimes defined in
Section 261 or 289.
(3) “Seriously disabled” means a person with severe physical or
sensory disabilities.
(4) “Medically incapacitated” means a person who is incapacitated
as a result of prescribed sedatives, anesthesia, or other medication.
(5) “Institutionalized” means a person who is located voluntarily
or involuntarily in a hospital, medical treatment facility, nursing
home, acute care facility, or mental hospital.
(6) “Minor” means a person under 18 years of age.
(h) This section shall not be construed to limit or prevent
prosecution under any other law which also proscribes a course of
conduct that also is proscribed by this section.
(i) In the case of a felony conviction for a violation of this
section, the fact that the defendant was an employer and the victim
was an employee of the defendant shall be a factor in aggravation in
sentencing.
(j) A person who commits a violation of subdivision (a), (b), (c),
or (d) against a minor when the person has a prior felony conviction
for a violation of this section shall be guilty of a felony,
punishable by imprisonment in the state prison for two, three, or
four years and a fine not exceeding ten thousand dollars ($10,000).

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Death Penalty

death penalty

Charges in California that carry the death penalty are: first-degree murder with special circumstances (capital murder); sabotage; train wrecking causing death; treason; perjury causing execution of an innocent person; fatal assault by a prisoner serving a life sentence. A qualified attorney can help your friend or loved one avoid the death penalty, or life in prison. It is very important that you consult with an attorney as soon as possible when facing any of the above mentioned crimes.

Capital punishment in California

From Wikipedia, the free encyclopedia

Executions in California were carried out in the gas chamberat San Quentin State Prison. It was modified for the use oflethal injection, but has been returned to its original state, with the creation of a new chamber specifically for lethal injection.

Capital punishment is a form of punishment in the U.S. state of California. It was declared unconstitutional by a federal judge in California (Jones v. Chappell) on July 16, 2014.[1] The state of California is believed likely to appeal the decision to the Ninth Circuit Court of Appeals.[2]

The first recorded death sentence in the area that is now California took place in 1778 when four Native Americans were sentenced to be shot in the Presidio of San Diego forconspiracy to commit murder.[3][4] Since this time, 709 executions took place before the California Supreme Court decision in People v. Anderson finding the death penalty to violate the state constitution, and the later Furman v. Georgia decision of the United States Supreme Court finding executions in general as practiced to violate the United States Constitution, both issued in 1972. California reinstated the death penalty in 1978. In 2006, U.S. District Judge Jeremy Fogel halted executions in California after finding flaws in the state’s execution process.[5] The current hold is pending judicial review of a new execution chamber and new methodologies for executing prisoners. However, themoratorium is expected to expand in 2013 because of the current court battle between inmate attorneys and the State’s Attorney General. Though prison officials have revised their procedures since 2006, death row inmates allege the procedures are still flawed and expose them to cruel and unusual punishment.

As of 2013, there are 741 offenders (20 of which are women) on California’s death row.[6][7] Of those, 126 involved torture before murder, 173 killed children, and 44 murdered police officers.[8]

Because California’s death penalty was enacted through the voter-initiative process, the only way to replace it is through a voter-approved ballot measure. In 2012, Proposition 34, which would have replaced the death penalty with life imprisonment, was defeated with 52% of the vote against and 48% for.

History

San Quentin State Prison, the location of the death row for the execution of male inmates.

Central California Women’s Facility, the location of the death row for female inmates.

The first known death sentence in California was recorded in 1778. On April 6, 1778 four Kumeyaay chiefs from a Mission San Diego area ranchería, were convicted of conspiring to kill Christians and were sentenced to death by José Francisco Ortega, Commandant of the Presidio of San Diego; the four were to be shot on April 11.[3] However, there is some doubt as to whether or not the executions actually took place.[4]

Four methods have been used historically for executions. Until slightly before California was admitted into the Union, executions were carried out by firing squad. Upon admission, the state adopted hanging as the method of choice.

The penal code was modified on February 14, 1872, to state that hangings were to take place inside the confines of the county jail or other private places. The only people allowed to be present were the county sheriff, a physician, and the county District Attorney, who would in addition select at least 12 “reputable citizens”. No more than two “ministers of the gospel” and no more than five people selected by the condemned could also be present.

Executions were moved to the state level in 1889 when the law was updated so that hangings would occur in one of the State Prisons—San Quentin State Prison andFolsom State Prison. According to the California Department of Corrections, although the law did not require the trial judge to choose a specific prison, it was customary for recidivists to be sent to Folsom. Under these new laws, the first execution at San Quentin was Jose Gabriel on March 3, 1893, for murder. The first hanging at Folsom was Chin Hane, also for murder, on December 13, 1895. A total of 215 inmates were hanged at San Quentin and a total of 93 were hanged at Folsom.

In previous eras the California Institution for Women housed the death row for women.[9]

1972 suspension of capital punishment

On April 24, 1972, the Supreme Court of California ruled in People v. Anderson that the current death penalty laws were unconstitutional and oversaw the commuting of 107 death sentences in the state in 1972, which in turn affected high-profile cases such as Sirhan Sirhan and Charles Manson, relieving them from execution. Following the ruling, the California Constitution was immediately modified to reinstate capital punishment, under an initiative called Proposition 17. The statute was also updated to make the death penalty mandatory for a number of crimes including first degree murder in specific instances, kidnapping where a person dies, train wrecking where a person dies, treason against the state, and assault by a life prisoner if the victim dies within a year.

The debate over capital punishment was played out in a somewhat similar fashion on the national level. On June 29, 1972, the U.S. Supreme Court issued its decision inFurman v. Georgia, holding all capital punishment statutes then in effect in the United States to be unconstitutional. On July 2, 1976, the Supreme Court, in Gregg v. Georgia, reviewing capital punishment laws enacted in response to its Furman decision, found constitutional those statutes that allowed a jury to impose the death penalty after consideration of both aggravating and mitigating circumstances. On the same date, the Court held that statutes imposing a mandatory death penalty were unconstitutional.

In a later decision in 1976, the Supreme Court of California again held the state’s death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. A further 70 prisoners had their sentences commuted following this. The next year, the statute was updated to deal with these issues. Life imprisonment without possibility of parole was also added as a punishment for capital offenses. A later change to the statute was in 1978 after Proposition 7 passed. This gave an automatic appeal to the Supreme Court of California, which would directly affirm or reverse the sentence and conviction without going through an intermediate appeal to the California Courts of Appeal.

In 1983, The State Bar of California created The California Appellate Project as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution.[10] At around the time of its founding, Michael Millman became the director of CAP. Millman served as director of CAP for 30 years.[11] CAP oversees the efforts to assist private lawyers representing the more than 700 people on California’s death row.[11]

The Supreme Court proposed in 2007 that the state adopt a constitutional amendment allowing the assignment of capital appeals to the Courts of Appeal to alleviate the backlog of such cases.[12]

Introduction of lethal injection

The latest change of method was introduced in January 1993, when lethal injection was offered as a choice for people sentenced to death. David Mason however chose to die from lethal gas in August 1993, just seven months after lethal injection was introduced. This was replaced with lethal injection as the standard method in 1994. William Bonin was the first person to be executed by these new laws on February 23, 1996. Thirteen people have been executed in California since the death penalty was reinstated in 1977, though 56 other people have died on death row from other causes (14 of them from suicide) as of October 25, 2007.[13]

2006 Federal court ordered moratorium on executions and non-partisan studies

Fogel’s ruling halted executions in California for nearly 5 years.

In February 2006, U.S. District Court Judge Jeremy D. Fogel blocked the execution of convicted murderer Michael Morales because of complaints about the administration of lethal injection in the gas chamber.[14] It was argued that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. The issue arose from an injunction made by the U.S. 9th Circuit Court of Appeals which held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications. The case led to a de facto moratorium of capital punishment in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution.[15]

Several other victims’ families testified to the California Commission on the Fair Administration of Justice in opposition to capital punishment, explaining that whilst they had suffered great losses, they did not view retribution as morally acceptable, and that the high cost of capital punishment was preventing the solving of cold cases.[16]

But others who contest this argument says the greater cost of trials where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.[17]

The California Commission on the Fair Administration of Justice concluded after an extensive review that under the current death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court’s review of death judgments. According to CCFAJ’s report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state.

An exhaustive study released in 2011, found that since 1978 capital punishment has cost California about $4 billion. A 2011 article by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, and law professor Paula Mitchell, concluded that “since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions.”[18]

Moratorium continues

Old execution room
New execution room
The old execution room at San Quentin State Prison (top), though still functional as a gas chamber, has been supplanted by new facilities designed specifically for lethal injection(bottom).

In addition to the federal case challenging the lethal injection protocol, state proceedings have provided an additional basis for halting executions. In the state case, the issue is whether the execution process complies with the Administrative Procedures Act. In December 2011, Judge Faye D’Opal of Marin County Superior Court ruled that the state had failed to justify the decision to put in place a three-drug lethal injection method, which some experts had said carries a risk of “excruciating pain,” instead of a one-drug method, which one of the Department of Corrections and Rehabilitation’s own experts had recommended.

As of May 2012 under the current 1978 law:

  • 57 inmates have died from natural causes
  • 6 inmates have died from other causes
  • 20 inmates have committed suicide[19]
  • 13 have been executed in California
  • 1 inmate (Kelvin Shelby Malone) was executed in Missouri

July 2014 decision

On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California’s death penalty system is unconstitutional because it is arbitrary and plagued with delay. The state has not executed a prisoner since 2006. The judge stated that the current system violates the Eighth Amendment‘s ban on cruel and unusual punishment by imposing a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” The state of California is believed to be likely to appeal the decision to the Ninth Circuit Court.[2]

Current legislation

Method

Prisoners sentenced to death are allowed to select lethal injection or exposure to lethal gas.

Under the California Penal Code § 3604 (a):

The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.

Pursuant to subsection (b) of that Code section, if the prisoner does not make a decision on the method within 10 days after the warden’s service upon the inmate of an execution warrant, then lethal injection is automatically chosen.

In October 1994, a United States federal judge ruled that the gas chamber was an unconstitutionally cruel and unusual punishment in Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994), and this was upheld by the U.S. 9th Circuit Court of Appeals in February 1996, Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996). The Supreme Court of the United States never ruled on the case, however, as California amended its statute to include lethal injection as the default method while the case was still pending on appeal. The Supreme Court of the United States, however, did subsequently hold in Stewart v. LaGrand, 526 U.S. 115 (1999) that by selecting a specific method of execution an inmate waives his right to challenge that method’s constitutionality. This means that lethal gas still theoretically remains optional in California if an inmate should opt for it.

As in any other state, people who are under 18 at the time of commission of the capital crime[20] or mentally retarded[21] are constitutionally excluded from being executed.

Capital offenses

The penal code provides for possible capital punishment in:

Public opinion

The Field Research Corporation found in February 2004 that when asked how they personally felt about capital punishment, 68% supported it and 31% opposed it (6% offered no opinion). This was a decrease from 72% support two years previous, and an increase from 63% in 2000. This poll was asked about the time that Kevin Cooper had his execution stayed hours before his scheduled death after 20 years on Death Row. When asked if they thought the death penalty was generally fair and free of error in California, 58% agreed and 32% disagreed (11% offered no opinion). When the results were broken down along ethnicity, of the people who identified themselves as African American, 57% disagreed that the death penalty was fair and free of error.

A poll in March 2012 found that “61% of registered voters from the state of California say they would vote to keep the death penalty, should a death penalty initiative appear on the November 2012 ballot”[26]An August 2012 poll found that “support for Prop 34, which would repeal California’s death penalty, fell from 45.5% to 35.9%.”[27]

A PPIC poll from September 2012 showed that 55% of all adults and 50% of likely voters prefer life in prison without the possibility of parole over the death penalty when given the choice.[28]

A Field Poll in September 2014 showed that 56% support the death penalty, down from 69% three years ago. Support for the death penalty in California had not been at this low a level since the mid-1960s.[29]

Proposition 34, the SAFE California Act

A coalition of death penalty opponents including law enforcement officials, murder victims’ family members, and wrongly convicted people launched an initiative campaign for the “Savings, Accountability, and Full Enforcement for California Act,” or SAFE California, in the 2011-2012 election cycle.[30] The measure, which became Proposition 34, would replace the death penalty with life imprisonment without the possibility of parole, require people sentenced to life in prison without the possibility of parole to work in order to pay restitution to victims’ families, and allocate approximately $30 million per year for three years to police departments for the purpose of solving open murder and rape cases.[31] Supporters of the measure raised $6.5 million, dwarfing the $1 million raised by opponents of Proposition 34.[32]

The proposition was defeated with 52% against, 48% in favor.[33]

Comments by Chief Justices of the California Supreme Court

The current Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, a Republican appointee and former prosecutor, when questioned about the death penalty during an interview, stated: “I don’t think it is working…. It’s not effective. We know that.”[34] Her predecessor, former Chief Justice Ronald George, also a Republican appointee, characterized the system of death penalty appeals in California as “dysfunctional.”[35]

Executions after 1976

The following 13 people convicted of murder have been executed in California following the 1976 U.S. Supreme Court decision of Gregg v. Georgia. The first two executions were by gas chamber; all subsequent executions were by lethal injection.

Executed person Race Date of execution Victim(s) Governor
1 Robert Alton Harris White April 21, 1992 John Mayeski and Michael Baker Wilson
2 David Edwin Mason White August 24, 1993 Joan Picard, Arthur Jennings, Boyd Johnson, Antionette Brown, and Dorothy Land
3 William George Bonin White February 23, 1996 Marcus Grabs, Donald Hyden, David Murillo, Dennis Frank Fox, Charles Miranda, James McCabe, Ronald Gatlin, Harry Todd Turner, Russell Rugh, Glenn Barker, Steven Wood, Darin Lee Kendrick, Lawrence Sharp, and Steven Jay Wells
4 Keith Daniel Williams White May 31, 1996 Lourdes Meza, Miguel Vargas and Salvador Vargas
5 Thomas Martin Thompson White July 14, 1998 Ginger Fleischli
6 Jaturun Siripongs Asian February 9, 1999 Packovan Wattanporn and Quach Nguyen Davis
7 Manuel Pina Babbitt Black[36] May 4, 1999 Leah Schendel
8 Darrell Keith Rich White March 15, 2000 Annette Fay Edwards, Patricia Ann Moore, Linda Diane Slavik, and Annette Lynn Selix
9 Robert Lee Massie[37][38] White March 27, 2001 Boris G. Naumoff
10 Stephen Wayne Anderson White January 29, 2002 Elizabeth Lyman
11 Donald Jay Beardslee White January 19, 2005 Stacey Benjamin and Patty Geddling Schwarzenegger
12 Stanley Tookie Williams Black December 13, 2005 Albert Owens, Yen-Yi Yang, Tsai-Shai Lin, and Yee-Chen Lin
13 Clarence Ray Allen Native American January 17, 2006 Bryon Schletewitz, Josephine Rocha, and Douglas White

See also

References

  1. Jump up^ http://www.nationaljournal.com/domesticpolicy/federal-judge-rules-death-penalty-unconstitutional-in-california-20140716
  2. ^ Jump up to:a b Eckholm, Erik; Schwartz, John (July 16, 2014). “California Death Penalty System Unconstitutional, Federal Judge Rules”. New York Times. Retrieved 17 July 2014.
  3. ^ Jump up to:a b Ruscin, p. 196; Bancroft, vol. i., p. 316
  4. ^ Jump up to:a b Engelhardt 1920, pp. 96–97: Reference is made to three letters written by Father Serra to Father Lasuén dated April 22 and June 10, 1778 and September 28, 1779 wherein Father Serra expresses his satisfaction over Governor Felipe de Neve’s apparent grants of clemency in this regard. Based on these writings, Engelhardt concludes “It would seem that the sentence of death was commuted. At any rate, there are no particulars as to an execution.”
  5. Jump up^ Williams, Carol J. (July 2, 2011). “Judge who halted California executions gets post in Washington”. Los Angeles Times.
  6. Jump up^ California Death Penalty Moratorium Likely To Extend Into 2013 « CBS San Francisco
  7. Jump up^ The Buzz: Supporters of repealing California’s death penalty net $1.2 million in contributions – Sacramento Politics – California Politics | Sacramento Bee
  8. Jump up^ Ballot to abolish California’s death penalty opposed by RivCo officials
  9. Jump up^ “Court Ruling Won’t Mean Bloodbath On Death Row.”Associated Press at the Tuscaloosa News. Tuesday February 15, 1972. p. 10. Retrieved on Google News (6/15) on March 27, 2013. “There are five women under a sentence of death. Three of Manson’s convicted accomplices, Susan Atkins, Leslie Houten, and Patricia Krenwinkel, are in a special women’s section of the row built at the California Institute for Women at Frontera.”
  10. Jump up^ “About CAPSF”. capsf.org. Retrieved 25 January 2015.
  11. ^ Jump up to:a b “Supreme Court Marks Passing of Michael Millman”.courts.ca.gov. California Supreme Court. Retrieved 7 February 2015.
  12. Jump up^ Weinstein, Henry (November 20, 2007). “Court urges amendment to speed death penalty reviews”. Los Angeles Times. Retrieved July 1, 2012.
  13. Jump up^ Condemned Inmates Who Have Died Since 1977
  14. Jump up^ Williams, Carol J. (September 22, 2010). “Clock is ticking on first execution at San Quentin’s revamped death chamber”. Los Angeles Times. Retrieved September 26, 2010.
  15. Jump up^ Death Penalty Moratorium in California
  16. Jump up^ Herron, Aundré M. (April 20, 2008). “Aundré M. Herron: The death penalty is not civilized” (PDF). Sacramento Bee. Retrieved March 31, 2010.
  17. Jump up^ STUDY: COST SAVINGS FROM REPEAL OF DEATH PENALTY MAY BE ELUSIVE
  18. Jump up^ “Alarcon law review” (PDF).
  19. Jump up^ California death row inmate found dead hanging in his cell, CNN, Darrell Calhoun and Michael Martinez, May 30, 2012
  20. Jump up^ Roper v. Simmons, 543 U.S. 551 (2005)
  21. Jump up^ Atkins v. Virginia, 536 U.S. 304 (2002)
  22. Jump up^ California Penal Code § 37
  23. Jump up^ California Penal Code § 128
  24. Jump up^ California Penal Code § 190 and 190.1
  25. Jump up^ California Penal Code § 219
  26. Jump up^ SurveyUSA News Poll #19044, http://www.surveyusa.com/client/PollReportEmail.aspx?g=c0076b43-5a67-415f-9b9f-6da015bf123a
  27. Jump up^ California Business Roundtable and Pepperdine University School of Public Policy,http://publicpolicy.pepperdine.edu/news-events/news/2012/08/02-cbrt-spp-release-statewide-initiative-survey-results.htm.
  28. Jump up^ http://www.ppic.org/content/pubs/survey/S_912MBS.pdf
  29. Jump up^ Chokshi, Niraj. “Support for the death penalty in California hits a five-decade low”. Washington Times. Retrieved 13 September 2014.
  30. Jump up^ http://www.safecalifornia.org/home
  31. Jump up^ http://www.safecalifornia.org/facts/about
  32. Jump up^ Elias, Paul. Calif. voters retain death penalty despite costs, November 7, 2012. Associated Press.
  33. Jump up^ “Smartvoter.org”.
  34. Jump up^ “L.A. Times interview”.
  35. Jump up^ “L.A. Times Interview”.
  36. Jump up^ Davis, Angela Y. (2013-09-18). The Meaning of Freedom: And Other Difficult Dialogues. City Lights Books. pp. 58–.ISBN 9780872865860. Retrieved 24 July 2014.
  37. Jump up^ “Massie Executed For 1979 S.F. Murder / Witnesses see procedure from beginning to end”. Sfgate.com. March 27, 2001. Retrieved September 12, 2010.
  38. Jump up^ “Massie on Death Row—On Again, Off Again”. Sfgate.com. March 14, 2001. Retrieved September 12, 2010.

External links

Retrieved from “http://en.wikipedia.org/w/index.php?title=Capital_punishment_in_California&oldid=657055145“
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First Degree Murder

first-degree-murder

The unlawful killing of another human being- homicide- may either be charged as murder or manslaughter. Murder requires “malice aforethought,” which means the defendant had expressed or implied malice and that there was a deliberate intent to commit murder. Under California law, there are three ways in which a person may be convicted of first-degree murder: by committing murder, killing in a way that is willful, deliberate, and premeditated, OR by way of the felony-murder rule. The felony-murder rule is defined as committing a specifically enumerated felony that automatically turns any logically related death into first-degree murder.

Overview of California First Degree Murder Laws

The unlawful killing of a human being — homicide — may be charged as murder or manslaughter. Murder requires a showing of “malice aforethought,” which refers to the defendant’s intent or state of mind. To prove a murder, the prosecutor must show that the defendant had express or implied malice. Express malice means that the defendant deliberately intended to commit murder. Alternatively, a prosecutor may show implied malice in the defendant’s conduct that reflects an “abandoned and malignant heart.” Implied malice may arise if the defendant acted without care for another person’s safety or behaved with extreme recklessness.

California recognizes two types of murder: first degree murder and second degree murder. First degree murder is reserved for especially heinous crimes involving premeditation, deliberation or deliberate planning, and intent to kill. State laws list the special circumstances that a prosecutor must use to charge a defendant with first degree murder. If none of the special circumstances apply, the prosecutor may pursue a charge of second degree murder.

Under California’s first degree murder law, the prosecutor must show a premeditated, deliberate killing involving one of the special circumstances listed by the state laws of California. The means of killing that qualify a homicide as first degree murder include weapons of mass destruction, bombs or explosive devices, armor-piercing ammunition, poison, and firearms shot from a motor vehicle. State law also requires a charge of first degree murder when the killing occurred after the defendant’s lying in wait or torture of the victim. First degree murder also includes killings committed while carrying out or attempting another felony such as burglary, robbery, rape, kidnapping, and other specified crimes.

If the victim for survives three years and one year after the date when the cause of death allegedly occurred, California state laws include a presumption that the killing was not a criminal act of murder or manslaughter. The prosecutor must rebut the presumption in order to pursue a first degree murder charge.

Defenses to First Degree Murder Charges

See First Degree Murder Defenses for more details.

Penalties and Sentences

In California, a conviction for first degree murder can result in one of three sentences:

  • Imprisonment in state prison for a term of 25 years to life;
  • Life imprisonment in state prison without the possibility of parole; or
  • Death.

State laws require a sentence of life imprisonment without parole or death for homicides involving special circumstances set by the California Penal Code. For example, the court must consider whether the defendant committed first degree murder while engaging in a felony or avoiding a lawful arrest, using a bomb or explosive device, or intending to kill another person for financial gain. The court must also confer a sentence of life imprisonment without parole or death if the defendant committed first degree murder of a peace officer, federal law enforcement officer, firefighter, prosecutor, or judge. State laws also allow for the most stringent forms of punishment when the murder was “especially heinous, atrocious, or cruel, manifesting exceptional depravity.” source

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Manslaughter

manslaughter

Voluntary Manslaughter:

When you kill another person during a sudden quarrel or in the heat of passion, you may be charged under Penal Code 192(a), California’s voluntary manslaughter law. The difference between voluntary manslaughter and first-degree murder is the absence of malice, since the killing is done spontaneously in a voluntary case. If convicted, you may face 3 to 11 years in the California State Prison.

Overview of California Voluntary Manslaughter Laws

Homicide, the unlawful killing of a human being, may result in a criminal charge of murder or manslaughter. In a murder case, the prosecutor must establish the defendant’s “malice aforethought,” which refers to the defendant’s intentions, decisions, and planning related to the homicide. Malice may be shown through deliberate planning or participation in reckless, dangerous activity. When an individual commits a homicide without malice, the state might charge the defendant with manslaughter instead of murder. The difference between murder and voluntary manslaughter often focuses on the defendant’s state of mind at the time of homicide.

California state laws define three types of manslaughter: voluntary, involuntary, and vehicular. For a voluntary manslaughter charge, the prosecutor must show that the defendant committed homicide during a sudden quarrel or while in the heat of passion. The events and circumstances surrounding the homicide — the quarrel or provocation –establish a lack of malice that would otherwise result in a murder charge. The prosecutor must still show that the defendant had the intent to inflict severe bodily injury or death on the victim in order to prove voluntary manslaughter.

Acts that qualify as provocation depend on the circumstances surrounding the homicide. Some common acts of provocation include mutual combat in which both the defendant and victim equally participated, murder of a family member, or adultery committed by the defendant’s spouse.

If a period of time has passed between the act of provocation and the homicide, California laws provide the prosecutor with the basis for a murder charge rather than a manslaughter charge. State laws require a murder charge if the defendant had a sufficient “cooling period.” If the defendant committed the homicide after the cooling period, the prosecutor may be able to show that the defendant had enough time to premeditate or plan the killing.

Involuntary Manslaughter:

You can be charged under Penal Code 192(b) PC California’s involuntary manslaughter law when you kill another person without malice or intent to kill, but with conscious disregard for human life. If convicted under PC 192(b), you may face two to four years in the California State Prison.

Overview of California Involuntary Manslaughter Laws

Homicide, the unlawful killing of a human being, may result in a criminal charge of murder or manslaughter. California state laws include separate definitions for voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter. Involuntary manslaughter most commonly refers to unintentional homicides that occur during the commission of non-felony crimes or reckless conduct during lawful activities. In California, vehicular homicide and involuntary manslaughter are separate crimes with distinct definitions and punishments.

Homicide during the commission of a felony often results in a murder charge rather than a manslaughter charge. When a killing occurred during the commission of a crime that is not a felony, the prosecutor must prove that the defendant had a criminal intent to commit the underlying unlawful act. If the defendant did not intend to engage in the crime that resulted in homicide, the state may be unable to prove involuntary manslaughter. The defendant may be able to establish a lack of intent by showing a reasonable mistake or lack of knowledge.

An involuntary manslaughter can also happen during lawful activities that occur recklessly, carelessly, or unreasonably. A prosecutor might prosecute a defendant for a homicide that occurred due to the defendant’s careless behavior related to what would otherwise be a lawful activity.

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Vehicular Manslaughter

vehicular-manslaughter

California’s vehicular manslaughter laws (PC 191.5 & 192) punish acts of driving that kill another person when the driver drives in an unlawful way, with or without gross negligence, or drives during the commission of a lawful act which might produce death in an unlawful manner, or knowingly causes the accident for financial gain. Vehicular manslaughter is known as a “wobbler”. If convicted under a felony vehicular manslaughter, you may face two to ten years in state prison. If convicted under a misdemeanor, you may face up to one year in county jail.

In the state of California, depending on the degree of recklessness and whether alcohol was involved, a person could be charged with progressively more serious offenses: vehicular manslaughter, vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated, or second-degree murder. In any of these cases, the prosecution must prove that the driver committed some wrongful act (which could be a felony, a misdemeanor, an infraction, or a lawful act that might cause death) and that the wrongful act caused the collision and the death of the victim. Murder charges are usually reserved for the most egregious cases, such as a convicted DUI offender who drives recklessly while intoxicated and thereby causes a fatal collision.

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Probation & Parole Violations

probation

Probation & Parole Violations

If you violate the terms and conditions of your California misdemeanor or felony probation, you will have to attend a California probation violation hearing. Depending on the circumstances of your case, the judge may go several different routes: he/she may reinstate your probation with existing terms and conditions, he/she may change the terms to make them more stringent, or, revoke your probation and send you to jail.

All parolees are entitled to a California parole revocation hearing before a parole violation can be sustained. When a California state prison inmate is placed on parole, it means that he/she has agreed to abide by certain terms and conditions upon his/her release from prison. There are a variety of defenses that are applicable to parole revocation hearings that can convince the deputy commissioner that you should remain under your current parolee status.

Tips:

IT’S YOUR CHOICE – SUCCESSFUL PAROLE 1
A GOOD ATTITUDE IS A KEY TO SUCCESS 2
THINGS YOU NEED TO DO IN PRISON 3
THINGS YOU MUST DO WHEN YOU GET OUT OF PRISON 3
REGISTERING WITH THE POLICE OR SHERIFF 5
FINDING A PLACE TO LIVE, FOOD, AND OTHER SERVICES IN YOUR AREA 5
SOME THINGS YOU SHOULD KNOW 6
FINDING A JOB 7
THINGS TO KNOW ABOUT PAROLE 8
WHAT YOUR CONDITIONS OF PAROLE MEAN 9
AMERICANS WITH DISABILITIES ACT 12
GETTING AN EDUCATION 14
GETTING BETTER AT READING 14
TRAINING 15
RESTRAINING ORDERS 15
POLICE ASSISTANCE 15
THREE STRIKES, YOU’RE OUT NOTIFICATION 16
FINDING THE RIGHT ONE TO TALK TO 18
KNOW YOUR BENEFITS 20
DIVISION OF ADULT PAROLE OPERATIONS COMMUNITY PROGRAMS 26
OFFICE OF SUBSTANCE ABUSE PROGRAMS 28
WHAT THE INITIALS (ABBREVIATIONS OR ACRONYMS) STAND FOR 29
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Probation Modifications

probation modification

The judge has the sole discretion in modifying the terms of probation. A modification request can be initiated by the judge, the defendant, or by the prosecutor. Depending on the circumstances of each case, a modification may or may not be helpful to the probationer. In order to be considered for early termination of probation, the judge will want to ensure that you have successfully completed the terms of your probation and there are circumstances that justify early termination. Judges usually like to see at least 12 to 18 months completed before deciding to terminate the probation. Valid reasons for early termination include: your probation is keeping you from securing gainful employment, it is preventing you from advancing at work, or it is restricting necessary travel.

Legal Definitions

(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held. The court shall also have the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court’s order suspending the execution of the concluding portion of the supervised person’s term.

(b) The exercise of the court’s authority in subdivision (a) to revoke, modify, or change probation or mandatory supervision, or to terminate probation, is subject to the following:

(1) Before any sentence or term or condition of probation or condition of mandatory supervision is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard.

(A) If the sentence or term or condition of probation or the term or any condition of mandatory supervision is modified pursuant to this section, the judge shall state the reasons for that modification on the record.

(B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.

(2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order.

(3) In all probation cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.

(4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions.

(5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.

(6) The court may limit or terminate a protective order that is a condition of probation or mandatory supervision in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following:

(A) Whether the probationer or supervised person has accepted responsibility for the abusive behavior perpetrated against the victim.

(B) Whether the probationer or supervised person is currently attending and actively participating in counseling sessions.

(C) Whether the probationer or supervised person has completed parenting counseling, or attended alcoholics or narcotics counseling.

(D) Whether the probationer or supervised person has moved from the state, or is incarcerated.

(E) Whether the probationer or supervised person is still cohabiting, or intends to cohabit, with any subject of the order.

(F) Whether the defendant has performed well on probation or mandatory supervision, including consideration of any progress reports.

(G) Whether the victim desires the change, and if so, the victim’s reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources.

(H) Whether the change will impact any children involved, including consideration of any child protective services information.

(I) Whether the ends of justice would be served by limiting or terminating the order.

(c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape.

(d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.

(e) This section does not apply to cases covered by Section 1203.2.

– See more at: http://codes.lp.findlaw.com/cacode/PEN/3/2/8/1/s1203.3#sthash.s0KCJQ3H.dpuf

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Expungements

expungement

Expungements

Once you have completed summary probation, you can apply to have your initial charges “dismissed in the interest of justice.” Having a conviction(s) expunged can be very beneficial for those involved, especially since an expunged conviction would not be reported on Criminal Records Background Checks in California. If you successfully complete the terms of your probation- you and your criminal defense attorney can clean up your Rap Sheet in the state of California.

In the United States, criminal records may be expunged, though laws vary by state. Many types of offenses may be expunged, ranging from parking fines to felonies. In general, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.

However, when applying for a state professional license or job that is considered a public office or high security (such as security guard, law enforcement, or related to national security), you must confess that you have an expunged conviction or else be denied clearance by the DOJ. There is no post-conviction relief available in the federal system, other than a presidential pardon.[2]

Congressman Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to “[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense”.

Permissibility

Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.

Requirements often include one or more of the following:

  • Fulfilling a waiting period between the incident and expungement;
  • Having no intervening incidents;
  • Having no more than a specified number of prior incidents;
  • That the conviction be of a nature not considered to be too serious;
  • That all terms of the sentence be completely fulfilled;
  • That no proceedings be pending;
  • That the incident was disposed without a conviction; and
  • That the petitioner complete probation without any incidents.

Types of convictions that are often not eligible for expungement include:[3]

  • Murder
  • Felonies and first degree misdemeanors in which the victim is under 18 years of age
  • Rape
  • Sexual battery
  • Corruption of a minor
  • Sexual imposition
  • Obscenity or pornography involving a minor
  • Serious weapons charges

In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.

Most jurisdictions have laws which allow – or possibly even require – the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are “sealed.” The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, “delinquent acts,” to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a “clean slate,” shielding him or her from the negative effects of having a criminal record.

Petition for Expungement

California‘s expungement law permits someone convicted of a crime to file a Petition for Dismissal[4] with the court to re-open the case, set aside the plea, and dismiss the case.[5] In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime.[5] If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so.[5] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.[5] The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime.[5] What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.

Certificate of Rehabilitation

For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR).[6] The CR does not remove or expunge anything negative from the individual’s record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored.[7] and a request for apardon is automatically sent to the governor.[8]

Sealing juvenile records

Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday.[9]

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Motions to Withdraw a Plea

withdraw

California Penal Code 1018 PC allows defendants to withdraw their guilty pleas under a variety of circumstances. The law states that if you demonstrate “good cause” and file a Motion to Withdraw a Plea either before you are sentenced, or within 6 months of a probationary sentence, then you must be given the opportunity to withdraw the plea and substitute it with a plea of not guilty (if you pled guilty or no contest without an attorney), or, you may be given an opportunity to do the same if you pled guilty or no contest while you were represented by an attorney.

There are six kinds of Motions to Withdraw a Plea to an indictment or an information, or to a complaint charging a misdemeanor or infraction:

1. Guilty.
2. Not guilty.
3. Nolo contendere, subject to the approval of the court. The
court shall ascertain whether the defendant completely understands
that a plea of nolo contendere shall be considered the same as a plea
of guilty and that, upon a plea of nolo contendere, the court shall
find the defendant guilty. The legal effect of such a plea, to a
crime punishable as a felony, shall be the same as that of a plea of
guilty for all purposes. In cases other than those punishable as
felonies, the plea and any admissions required by the court during
any inquiry it makes as to the voluntariness of, and factual basis
for, the plea may not be used against the defendant as an admission
in any civil suit based upon or growing out of the act upon which the
criminal prosecution is based.
4. A former judgment of conviction or acquittal of the offense
charged.
5. Once in jeopardy.
6. Not guilty by reason of insanity.
A defendant who does not plead guilty may enter one or more of the
other pleas. A defendant who does not plead not guilty by reason of
insanity shall be conclusively presumed to have been sane at the time
of the commission of the offense charged; provided, that the court
may for good cause shown allow a change of plea at any time before
the commencement of the trial. A defendant who pleads not guilty by
reason of insanity, without also pleading not guilty, thereby admits
the commission of the offense charged.

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Bankruptcy

bankruptcy

Filing for bankruptcy can be a stressful task, one of which you should not have to do alone. Our experienced team of attorneys will thoroughly guide you through the daunting process of going through a bankruptcy. Bankruptcy laws are complicated and changing regularly due to new legislation laws. Seeking the right representation is crucial for the outcome of your bankruptcy case and ultimately your financial future.

Types of bankruptcy

There are four common kinds of bankruptcy cases, named by the chapter of the federal Bankruptcy Code that describes them.

  1. Chapter 7 is the most common form of bankruptcy for individuals. It is a liquidation bankruptcy, which means that the court sells all your assets for cash and then pays your creditors. You can keep assets that are exempt from sale either under federal law or the law of your home state. Chapter 7 bankruptcy can wipe out most of your debts. There is a “means test” for filing this type of bankruptcy. You must make less than a certain amount of money. Talk to a lawyer to see if you qualify for this type of bankruptcy. You cannot repeat this type of bankruptcy filing for 6 years.
  2. Chapter 11 is a reorganization proceeding, usually for corporations or partnerships because of its complexity, but individuals can file too. The debtor usually keeps his or her assets and continues to operate the business and tries to work out a reorganization plan to pay off the creditors.
  3. Chapter 12 is a simplified reorganization for family farmers, where the debtor keeps his or her property and works out a repayment plan with the creditors.
  4. Chapter 13 is like Chapter 11 but for individuals. It is a repayment plan for individuals with regular income. Under this type of bankruptcy, you pay your debts off over a 3- to 5-year period and you keep your property. There are limits to how much debt and what type of debt you can owe to qualify for Chapter 13. Talk to a lawyer to see if you qualify for a Chapter 13.