Tag: San Francisco

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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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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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Transportation for Sale

transportation

Transportation for Sale (HS 11352):

In order to be convicted under statute HS 11352, the prosecutor must prove beyond a reasonable doubt that you either: engaged in transporting, importing, selling, administering or giving away drugs in California, that you knew the drug was in your presence and that it is an illegal substance, and that there was enough of the controlled substance present in order to be used as a drug. If the prosecutor cannot prove these factors beyond a reasonable doubt, then you will not be convicted of selling or transporting a controlled substance.

 Penalties (HS 11352):

It is a felony to sell or transport a controlled substance under Health and Safety code 11352. If convicted of selling or transporting a controlled substance, you may face up to 5 to 6 years in state prison, with fines up to $20,000. If you are an immigrant, deportation is very likely. Depending on the circumstances of each case, sentencing will be heightened depending on the amount of controlled substances in possession for sale or transportation.

11352. (a) Except as otherwise provided in this division, every
person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this
state, sell, furnish, administer, or give away, or attempts to import
into this state or transport (1) any controlled substance specified
in subdivision (b), (c), or (e), 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 for
three, four, or five years.
(b) Notwithstanding the penalty provisions of subdivision (a), any
person who transports any controlled substances specified in
subdivision (a) within this state from one county to another
noncontiguous county shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for three, six, or
nine years.
(c) For purposes of this section, “transports” means to transport
for sale.
(d) This section does not preclude or limit the prosecution of an
individual for aiding and abetting the commission of, or conspiring
to commit, or acting as an accessory to, any act prohibited by this
section.

11352.1. (a) The Legislature hereby declares that the dispensing
and furnishing of prescription drugs, controlled substances, and
dangerous drugs or dangerous devices without a license poses a
significant threat to the health, safety, and welfare of all persons
residing in the state. It is the intent of the Legislature in
enacting this provision to enhance the penalties attached to this
illicit and dangerous conduct.
(b) Notwithstanding Section 4321 of the Business and Professions
Code, and in addition to any other penalties provided by law, any
person who knowingly and unlawfully dispenses or furnishes a
dangerous drug or dangerous device, or any material represented as,
or presented in lieu of, any dangerous drug or dangerous device, as
defined in Section 4022 of the Business and Professions Code, or who
knowingly owns, manages, or operates a business that dispenses or
furnishes a dangerous drug or dangerous device or any material
represented as, or presented in lieu of, any dangerous drug or
dangerous device, as defined in Section 4022 of the Business and
Professions Code without a license to dispense or furnish these
products, shall be guilty of a misdemeanor. Upon the first
conviction, each violation shall be punishable by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed five
thousand dollars ($5,000), or by both that fine and imprisonment.
Upon a second or subsequent conviction, each violation shall be
punishable by imprisonment in a county jail not to exceed one year,
or by a fine not to exceed ten thousand dollars ($10,000), or by both
that fine and imprisonment.

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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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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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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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Fraud

fraud

Fraud (PC 484):

A person who commits an act that results in unfair or undeserved benefit for yourself and/or causes loss or harm to another person, then you have violated California’s criminal fraud laws. Generally, there are two main motives for violating the statute: financial gain and/or to escape criminal culpability.

 Penalties (PC 484):

Many California fraud cases are wobbler offenses, giving the prosecutor the discretion whether to charge it as a misdemeanor or felony; the decision largely depends on the facts of the case and your criminal record. Some are treated as automatic felonies and a majority of offenses are federal crimes, subjecting you to both state and federal courts, which in turn subject you to increased penalties. In addition, California fraud convictions subject legal resident aliens to deportation or removal.

Legal Defenses (PC 484):

There are a variety of ways to defend fraudulent cases. The best case scenario is to prove to the court that you did not have fraudulent intent. If didn’t intend to commit a fraud, you cannot be guilty of committing fraud.

 

1. California Insurance Fraud Offenses

You commit California insurance fraud when you attempt to obtain insurance payments or benefits to which you are not otherwise entitled.  Examples of California insurance fraud include violations of

1.1. California’s automobile insurance fraud laws

You violate California’s automobile insurance fraud laws when you attempt to obtain money fraudulently from an auto insurance carrier by engaging in acts such as

  • “staging” an accident,
  • inflating the price of a claim, or
  • setting fire to your vehicle and reporting it stolen.

1.2. California’s health care insurance fraud laws

Doctors, pharmacists, medical equipment suppliers and hospital employees are just some of the players that may be involved in violating California’s health care insurance fraud laws. Examples of these types of violations include (but are not limited to):

  • charging for medical services that were not provided,
  • receiving “kickbacks” for prescribing certain drugs,
  • engaging in California doctor shopping or prescription fraud by securing multiple prescriptions for the same drug, and/or
  • double billing or over-billing for services rendered.

1.3. California’s Medi-Cal insurance fraud laws

Most acts that violate California’s Medi-Cal insurance fraud laws are simultaneously violations of California health care fraud.  For example, a doctor who bills Medi-Cal (California’s health insurance program for low income people) for services he/she did not perform, commits Medi-Cal fraud as well as the more generic crime of health care fraud.

1.4. California’s unemployment insurance fraud laws

California’s unemployment insurance fraud laws prohibit intentional attempts to increase, reduce or deny an unemployment insurance benefit.  Examples include (but are not limited to):

  • falsifying your work-search efforts,
  • collecting benefits in two or more states, and
  • intentionally providing false information about why an employee was terminated…or about his/her wages…to avoid contributing to the unemployment insurance program.

1.5. California’s welfare fraud laws

You violate California’s welfare fraud laws when you try to obtain or increase welfare benefits to which you are not legally entitled.  There are two types of California welfare fraud:

  1. recipient fraud (which includes trying to secure fraudulent benefits), and
  2. internal fraud (where an employee of a government agency that distributes welfare benefits attempts to collect or distribute unlawful benefits from that agency).

1.6. California’s workers’ compensation laws

You violate California’s workers’ compensation laws when you try to make a fraudulent claim against this state’s workers’ compensation insurance program.  Examples of this type of fraud include (but are not limited to):

  • faking an injury (or exaggerating the extent of the injury),
  • claiming that a non-work injury is work-related, and
  • failing to disclose a prior injury that would be relevant to your current claim.
2. California Real Estate & Mortgage
Fraud Offenses

California’s real estate and mortgage fraud laws punish any deliberate false representation that is made in connection with any portion of a real estate transaction.

The most common examples of real estate and mortgage fraud include (but are not limited to):

2.1. California foreclosure fraud

California foreclosure fraud is one of the most frequently prosecuted types of California real estate fraud.  In simple terms, foreclosure fraud takes place when a person…often a self-proclaimed foreclosure “consultant”…represents that he/she can postpone or prevent a pending foreclosure.  More generally, you commit this type of fraud anytime you engage in a fraudulent activity that has to do with a foreclosed home or a home that is involved in the foreclosure process.

2.2. California’s laws against forging deeds

Forgery is defined as knowingly altering, creating or using a written document with the intent to commit a fraud.  As a result, California’s laws against forging deeds prohibit

  1. attempting to file, register or record a forged deed, and/or
  2. filing a forged deed.

2.3. California predatory lending schemes

Predatory lending refers to unlawful practices by banks and other lending institutions that take advantage of unsuspecting borrowers.  Simply put, you violate California’s laws against predatory lending when you…as a lender…manage a loan transaction to extract the maximum value for yourself without regard for the borrower’s ability to repay the loan.

2.4. Illegal property flipping in California

Property flipping is generally a legal practice.  It typically involves a buyer who purchases a property below market value, upgrades it and then quickly sells it for a profit.

Illegal property flipping in California…a violation of California’s real estate and mortgage fraud laws…occurs when you create fraudulent appraisals and/or loan documents to justify an inflated asking price.

2.5. California’s rent skimming laws

You violate California’s rent skimming laws when you

  1. use rent proceeds from your residential rental property at any time during the first year after acquiring the property without first applying that amount to your mortgage, or
  2. rent a property that you don’t own or have the authority to rent and collect the rent for your own use.

Generally, rent skimming is a civil offense, subjecting you only to fines.  However, if you engage in rent skimming with five or more properties within in any two-year period, the acts will be prosecuted criminally as well.

2.6. California straw buyer schemes

California straw buyer schemes wreak havoc on those deemed the “straws”.  These individuals are recruited by real estate agents or brokers because of their good credit.  The professional convinces the straw to use his/her information to secure a loan for another buyer…or even a fictitious buyer…who allegedly can’t acquire the loan because of poor credit.

Once the loan is processed, the agents…and any other players such as a mortgage broker…collect the loan money and run.  The straw is then left responsible for the mortgage, which ultimately causes him/her to generally declare bankruptcy and face possible criminal charges.

2.7. California phantom help schemes

California phantom help schemes are specifically prohibited under California’s foreclosure fraud law.  There are three types of phantom help schemes:

  1. A so-called “foreclosure consultant” or “mortgage modification specialist” charges a homeowner who is facing foreclosure a fee to delay or prevent the foreclosure process when he/she in fact does little or no work towards this goal,
  2. A seller markets a home that is pending foreclosure to an unsuspecting buyer who is unaware of the foreclosure.   The “seller” collects a down payment and delivers a fake or unrecorded deed that does not convey any title to the property.
  3. A “consultant” convinces the homeowner to make his/her mortgage payments directly to the consultant who claims that he/she will serve as a liaison between the homeowner and the bank in an effort to slow or stop the foreclosure process.
3. Generic Types of California Financial Fraud

There are a number of generic California fraud offenses that involve undeserved financial gain.  Some of the more prevalent offenses include

3.1. California check fraud

You commit California check fraud by making, using or possessing…or attempting to make or use…a check when you

  1. intend to defraud the payee, and
  2. reveal that intent by representing the check to be genuine.

This is not the same as California’s bad checks law which prohibits passing or attempting to pass a check knowing that there are insufficient funds to cover the full amount of the check.  Trying to pass a check in violation of California’s bad checks law also constitutes California check fraud.

3.2. California credit card fraud

California credit card fraud, not surprisingly, involves any fraudulent transaction that is made or attempted with respect to a credit or debit card or with the account information that is linked to a credit or debit card.

Typical examples of this offense involve

  • using someone else’s credit card without their authorization,
  • selling counterfeit credit cards, and/or
  • using your own credit/debit card knowing that the card is expired or has been revoked.

3.3. California securities fraud

California securities fraud …also known as stock fraud or investment fraud…involves practices that encourage investors to make decisions based on false information.  This type of fraud can include stealing from investors, misstating a company’s value or even counterfeiting or altering a company’s financial statements.

  • Stock traders,
  • promoters,
  • accountants, and
  • traders

are the typical players that are involved in these types of schemes.

4. Forgery and Identity Theft

Forging any type of document is a fraudulent offense.  And because many forged documents have to do with one’s identification, these types of offenses not only violate California’s fraud laws but California’s forgery laws and California’s identity theft laws as well.

Some of the most common types of fraud offenses that fall under these categories are listed below.

4.1. California’s laws against forging, counterfeiting or possessing a fraudulent public seal

California’s laws against forging, counterfeiting or possessing a fraudulent public seal prohibit just that.  What’s interesting is that this crime is not limited to California seals. You can be convicted of this offense for engaging in any of the above activities with respect to any public seal, whether it is the seal of any government, government agency or corporation.

And if you violate this law by forging a public seal on a document that lends you someone else’s identity, you violate California’s identity theft law as well.

4.2. California’s laws against forging or counterfeiting a driver’s license or
ID card

Similarly, if you violate California’s laws against forging or counterfeiting a driver’s license or ID card…and you assign yourself a different name…you would also be guilty of identity theft.  However, it isn’t necessary that you commit identity theft in order to violate this law.

All that is required under this California fraud offense is that you alter a government issued driver’s license or ID card…again, any government will do, this law does not exclusively pertain to California-issued cards…or make a counterfeit one.

And it is important to note that possessing a fake or counterfeit driver’s license or ID card is also a violation of California’s fraud laws.

4.3. California’s False Personation Law

You violate California’s false personation law when you pose as another person in order to secure a benefit for yourself and/or to harm the other individual.  This is a clear violation of California’s identity theft law.

Common examples include

  • signing someone else’s name to a check and trying to cash it as if you’re that individual…which is also a violation of California’s check fraud law, or
  • using someone else’s name to obtain welfare benefits…which is also a violation of California’s welfare laws.

Oftentimes this type of offense takes place over the Internet – common examples include

  • using someone else’s credit card to make an on-line purchase, or
  • posing as someone in an on-line “chatroom” or by hacking into someone else’s social networking profile.

Both of these examples are also examples of California Internet fraud, discussed below.

4.4. California Internet fraud

California’s Internet fraud laws prohibit any fraudulent activity that takes place on a computer, such as in a chat-room, e-mail, or on-line store.

are all examples of California Internet fraud.

5. California Fraud Offenses Involving Elders

There are also a number of California fraud offenses that specifically deal with seniors.  These include

5.1. California senior fraud

You violate California’s elder abuse laws when you emotionally, physically or financially abuse an elder…that is, a person 65 years or older.  When this type of abuse is financial, it typically qualifies asCalifornia senior fraud.

Examples of the types of schemes that frequently qualify as financial elder abuse include (but are not limited to):

  • telemarketing schemes,
  • credit repair schemes,
  • home repair schemes,
  • funeral and cemetery senior fraud, and
  • real estate predatory lending elder abuse.

5.2. California nursing home fraud

Like elder abuse, nursing home abuse can be physical, emotional or financial.  Instances of financial abuse are considered acts of
California nursing home fraud. This type of fraud can include acts such as

  • being an employee of the facility and convincing one of the elderly residents to sign over his/her property to the employee,
  • overbilling for care, and/or
  • forging the elder’s name on a check.
6. Miscellaneous California Fraud Offenses

Finally, there are a few other miscellaneous commonly prosecuted California fraud offenses worth mentioning.

6.1. Mail fraud

Mail fraud is actually a federal offense. It includes any fraudulent activity that utilizes the postal system during the commission of the offense.  This means that if, for example, you

  • use the mail to advertise fraudulent services,
  • send a forged check through the mail, or
  • intentionally fail to deliver a product that was ordered through the mail,

you may be convicted of mail fraud.

6.2. California handicapped parking fraud

You commit California handicapped parking fraud when you illegally use, misuse or lend to another person a handicapped parking placard.  There are a variety of ways you can commit this offense, including (but not limited to):

  • using someone else’s placard to park when you are not disabled…and the true owner of the placard is not with you,
  • lending your placard to someone who isn’t entitled to use such a placard, or
  • displaying a fake, forged or expired handicapped placard.

6.3. California’s law against fraudulent vehicle registration stickers

If…in an effort to secure a financial gain and/or to avoid paying DMV taxes or fees…you intentionally interfere with

  • a license plate,
  • registration stickers, or
  • a registration card,

you are guilty of violating California’s law against fraudulent
registration stickers.  And…depending on how you interfere with these items…you could face additional charges for violating California’s law against forging, counterfeiting or possessing a fraudulent public seal.

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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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Battery

battery

Battery (PC 242):

Battery is the actual use of force or violence on someone else. The legal definition is as follows: you touched someone else, willfully, in a harmful or offensive manner. If all three elements are not proven by the prosecutor, then you are not guilty of PC 242 battery. The second element, “willfully,” means that you acted willingly or on purpose; this does not mean that you necessarily intended to break the law, hurt someone else, or gain any advantage. In other words, whether or not you intended to commit battery, you must have intended to perform the motion that caused the battery to be guilty of the crime. For example, if out of anger you throw an object and it happens to hit a person in the head, you may be guilty of Penal Code 242 battery; even if you did not intend to commit the battery you are still guilty because you intended to throw it, which created the risk itself.

 Penalties (PC 242):

Simple battery that does not cause serious injury and is not committed against law enforcement or other protected persons- is a misdemeanor under California Penal Code 242. A misdemeanor conviction can potentially land you up to 6 months in county jail, fines up to $2,000, and/or a period of informal (summary) probation.

Legal Defenses (PC 242):

There are various defense techniques that our skilled criminal defense attorneys can use in order to help beat battery charges. In many scenarios, we can argue that you acted in self-defense or in defense of someone else or that you did not act willfully and that it was an accident.

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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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Criminal Threats

criminal threats

Criminal Threats (PC 422):

‘Criminal threats’ is the crime of putting someone in fear. California Penal Code 422 PC defines the crime of “criminal threats” as the act of threatening to kill or physically harm someone and that person is placed in a state of reasonable fear for his/her safety, the threat is specific, and it is communicated verbally, in writing, or via an electronic source. Whether or not you have the ability to carry out the threat, you can still be charged under PC 422 even if you never followed through with the threat. For example, threatening to shoot someone while holding a gun is considered a crime under PC 422.

 Penalties (PC 422):

Penal Code 422 PC is a wobbler, meaning the prosecutors have the discretion as to file it as either a misdemeanor or felony. If convicted of a misdemeanor, you may face up to one year in county jail. If convicted of a felony, you may face up to 4 years in the California state prison. The presence of a dangerous or deadly weapon increases your sentence 1 year. A criminal threat conviction is also a “strike” under California’s three strikes law.

Legal Defenses (PC 422):

Even if threats were made, there are specific defenses that our team of criminal defense attorneys can use in order to disprove that your actions violated California Penal Code 422 PC, Criminal Threats. Several examples of defense include: If the threat was vague or ambiguous, if the recipient of the threat could not have been reasonably fearful of his/her safety or was not actually in fear, or if you made the threat via a threatening gesture rather than verbally, electronically, or in writing.

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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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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 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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Second Degree Murder

2nd degree murder

The second degree murder rule attaches to felonies that are both inherently dangerous, and not specifically included under the first-degree felony-murder rule. “Inherently dangerous” felonies are those that cannot be committed without creating a substantial risk that someone will be killed. For example, setting a car on fire that is found in close proximity to people, is inherently dangerous to human life and triggers the second-degree felony-murder rule.

Overview of California Second Degree Murder Laws

A prosecutor may charge homicide, the unlawful killing of a human being, as murder or manslaughter. Murder requires proof of “malice aforethought,” which refers to the defendant’s intent or state of mind. In a murder case, California state laws require the prosecutor to prove that the defendant exhibited express or implied malice. Express malice means that the defendant deliberately chose to commit murder. Alternatively, the prosecutor may show implied malice in the defendant’s conduct that reflects an “abandoned and malignant heart.” Implied malice may arise if the defendant meant to create the circumstances that resulted in the killing of another person. When a criminal case lacks malice, the prosecutor will likely need to pursue manslaughter charges instead of murder charges.

Murder in California may be prosecuted in the first degree or second degree. First degree murder is the more serious of the two charges. The legal definition of first degree murder affects the definition of second degree murder — state law defines second degree murder as all murders that do not qualify as first degree murder.

California state laws list a number of special circumstances that qualify a homicide as first degree murder. The circumstances of first degree murder include a killing committed during the commission of one of the felonies specified by state law or the use of a designated means of killing such as a weapon of mass destruction or an explosive device. All homicides that do not meet the definition of first degree murder will be charged as second degree murder unless the prosecutor chooses to pursue a charge of manslaughter.

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

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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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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.