California Criminal Defense Blog

In an effort to

• improve parole supervision,


• relieve California’s over-crowded prisons, and


• reduce recidivism (that is, the number of people who are released from prison and go on to commit new crimes),

the California Department of Corrections recently launched a new program…non-revocable parole.

When a parolee allegedly violates his/her parole conditions, he/she is entitled to a California parole revocation hearing. At that hearing, the hearing commissioner determines whether there is enough evidence to revoke the parolee’s status and return him/her to the California state prison.

However, under the non-revocable parole program, certain parolees will not attend California parole revocation hearings. Individuals who are placed on non-revocable parole will only be returned to prison if they are arrested for a new offense…and only if they are convicted of that offense in the same manner as any other criminal defendant.

In addition, parolees on the non-revocable parole program don’t report to a parole officer. They do, however, remain subject to warrantless searches by the police.

California essentially subscribes to a mandatory parole program. In theory, this means that all eligible inmates who come up for parole will be granted parole. In reality, this means something completely different.

You see, before a “lifer” is placed on parole, he/she must appear before the parole board for a California Board of Parole “Lifer” Hearing. During one of these parole suitability or “lifer” hearings, the California parole board evaluates whether or not it believes that an inmate is “ready to be returned to society”.

Eligible parolees are supposed to be paroled unless they present an overriding public safety risk. What constitutes an “overriding public safety risk” is very discretionary and, as I’m sure you can imagine, very open to interpretation.

Although parole rates in the last few years have grown…due in large part to overcrowded California state prisons and the state’s budget crisis…certain classes of felons are surely more subject to scrutiny than others. It is these inmates who attend more than their share of hearings before being released on parole.

This is just one reason why it is so important to consult with a California criminal defense attorney who understands the most effective ways to convince the Board of Parole Hearings that you have been rehabilitated and are therefore ready and eager to become a “productive member of society”.

Even though the terms probation and parole are frequently used interchangeably, they are actually quite different. Take, for example, yesterday’s reports about rapper DMX. About half of the media websites reported that the rapper violated his probation, while the other half reported that he violated his parole. DMX actually violated his probation.

The main difference between probation and parole is that California parole laws apply exclusively to convicted felons and only go into effect once the inmate is released from the California state prison. As a “parolee”, the individual agrees to abide by certain terms and conditions, which are monitored by a parole agent.

Probation is also a supervised program, but (1) it applies to both misdemeanors and felonies, and (2) is imposed as a condition of sentencing. If the judge places you on probation, it means that you also agree to abide by certain terms and conditions, but you do so in exchange for either a lesser jail sentence or for no jail time at all. Probation can be formal or informal, depending on whether you were convicted of a misdemeanor or a felony.

If placed on formal probation, you report to a probation officer. If placed on informal or “summary” probation, you simply check in with the court for periodic progress reports.
Violating any of the terms of your probation or parole subjects you to further incarceration under California’s parole laws or California’s probation laws.

R&B singer D’Angelo, whose real name is Michael Archer, was arrested in Manhattan over the weekend for allegedly offering an undercover cop posing as a prostitute $40 for oral sex. D’Angelo is maintaining his innocence and has plead not guilty to the charge.

So, the big question is, will D’Angelo argue that he was entrapped? The legal defense of entrapment is raised almost every time an undercover cop is involved in a case alleging solicitation of a prostitute.

In California, for example, the Los Angeles Police Department is notorious for sending out “decoy” officers to pose as prostitutes. These undercover cops look for “johns” to engage in conversation and to ultimately arrest for soliciting illegal sex.

Under California law, entrapment only refers to situations where a law-abiding person is coerced into committing a crime that he/she otherwise would not have. If the officer simply offered D’Angelo sex in exchange for money, her conduct wouldn’t rise to the level of entrapment. If, however, she appealed to his ego and used flattery to get him to put up the cash, he could absolutely claim that he was entrapped.

Whether the conversation was recorded, whether there were any other witnesses to the alleged conversation, and the specifics of the conversation will all be critical issues in D’Angelo’s defense.

Earlier this month, a San Francisco jury acquitted a man of battery on a code enforcement officer following a two-day trial. The facts revealed that, upon seeing a “meter maid” approaching a parked car, the defendant decided to be a Good Samaritan and fed the expired meter for the owner. The parking enforcement officer became irate and began yelling at the defendant. After still issuing the ticket, the officer drove away when the defendant spit on the meter maid’s vehicle.

Had he been convicted under California’s misdemeanor “Battery on a Peace Officer” law, he would have faced up to one year in a county jail and a maximum $2,000 fine.

Fortunately, the jury recognized that, although the defendant’s act may have technically qualified as a misdemeanor battery on a peace officer…since a battery is any unwanted, unjustified, or offensive use of force on another person or on something closely connected to the person…they obviously didn’t feel he deserved to be punished for the alleged offense.

Kudos to a jury who allowed common sense to factor into their verdict!

People quite often refer to an assault as an “assault and battery”. While it’s definitely possible to commit an “assault and battery” the two are, in fact, separate crimes. Here’s the distinction…

A California Penal Code 240 PC “assault” takes place when you attempt to harm or injure another person. As long as you have the ability and desire to inflict an injury on someone, the crime is completed as soon as you attempt to injure that person.

It doesn’t matter whether you actually make contact with the individual or whether you actually injure that person. If you attempt to contact a person in a way that is likely to inflict harm, you have committed a California Penal Code 240 PC assault.

A battery, on the other hand, takes place when that attempt is completed…which is why battery is sometimes referred to as a “completed assault”. A battery necessarily involves physical contact. The contact doesn’t have to result in an injury (any unwanted or offensive touching will suffice).

This means that if you take a swing at someone during a fight, you could be guilty of assault. If you connect your punch, you could be guilty of assault and battery.

In law, we frequently refer to the “burden of proof”. This legal term refers to how much proof the prosecutor or plaintiff needs before he/she can obtain a ruling against the defendant. Two of the most common “burdens” are “preponderance of the evidence” and “beyond a reasonable doubt”.

Preponderance of the evidence is most frequently used in civil cases, although it is also used in criminal proceedings as well. It means “more likely than not”. Put another way, if it is 51% likely that the defendant committed the alleged act, he is liable. With respect to criminal proceedings, this burden in sometimes used during hearings, such as a California probation violation hearing.

The reason that a civil burden is used in criminal hearings is because these proceedings don’t afford criminal defendants as much protection as criminal trials do. Using the example above, this means that the prosecutor must only prove that it is more likely than not that a defendant violated his probation in order to find him guilty during a California probation violation hearing.

Beyond a reasonable doubt is the typical criminal burden of proof…and a bit trickier to define. It basically means that if there is no reasonable explanation other than the fact that the defendant committed the alleged act, then he must be guilty. This is the burden that is exclusively used during criminal trials, as it is California’s highest burden of proof.

California’s legal definition of “great bodily injury” is a significant or substantial injury.
Otherwise known as “GBI” or “great bodily harm”, great bodily injury is a sentencing enhancement. This means that when a defendant is convicted of a California criminal offense…and during that offense, he caused another person to suffer great bodily injury...he faces a greater penalty than he otherwise would have.

Great bodily harm is only supposed to be alleged under the most severe circumstances. When charged and proven, it subjects an offender to a three to six year California State Prison sentence in addition and consecutive to the sentence he/she will serve for the underlying offense.

The problem is that overzealous prosecutors charge this enhancement almost routinely anytime someone is injured. Even injuries as insignificant as scratches, red-marks, or simple bruises are being labeled “great bodily injuries”.

Fortunately, good California criminal defense lawyers understand that GBI is more severe than the type of injury that would normally result from a violent act…and know how to effectively convey that message to a judge and jury.

In 2009, a multi-agency unit, including the FBI and the California Attorney General, arrested 42 people suspected of Medi-Cal fraud. These defendants were accused of defrauding Medi-Cal out of $4.6 million, making it the largest single case of Medi-Cal fraud in California’s history.

The defendants allegedly billed Medi-Cal for in-home nursing services that were provided by unlicensed individuals. Some of these individuals had no medical training whatsoever, but performed nursing services that included administering medications, adjusting ventilators, and feeding through gastronomy tubes.

Medi-Cal fraud includes billing for unnecessary services, for drugs or other supplies that were never ordered, and for paying unauthorized individuals to perform medical services. The penalties can be severe, which is why it is important that anyone accused of this type of health insurance fraud consult with a criminal defense lawyer who has expertise in this complex area of the law.

As with anything in this world, there are always going to be exceptions to the rule. But in general, California nursing homes are staffed by caring, nurturing individuals who truly want to help others.

The problem is lies in the awful reputation that plagues nursing homes. While it’s true that elder abuse in California nursing homes is common, it’s certainly not the norm. But anytime an elder who lives in one of these long-term care facilities is unhappy, injured, or ill, the staff is automatically suspected of abuse.

Continue reading "The Unfortunate Plight of Nursing Home Employees" »

I was at my grandfather’s house earlier this week. As he was opening his mail, he became very excited. He received a letter informing him that he had won $2,500,000.00 and just needed to send a $20 “handling” fee to secure his prize. As he reached for his checkbook, I had to break the news to him…this was simply a scam.

My grandfather is a well respected and well educated doctor…and had I not been there, would have been a victim of financial elder abuse, otherwise known as “senior fraud”.

California financial elder abuse or “senior fraud” is punished under Penal Code 368 PC. It can include anything from stealing money from an elder’s wallet (a California elder is someone who is 65 or older), to scamming an elder out of money (like the letter sent to my grandfather), to sophisticated offenses like transferring an elder’s entire estate into your own name.

Not always easily detectible…nor always easily provable…California financial elder abuse is on the rise and…as a result…law enforcement officers are on the lookout.

Elder abuse has become a growing concern in California. Broadly defined in California’s Welfare and Institution Code and in Penal Code 368 PC, “elder abuse” is any abuse, whether it’s physical, emotional, financial…and whether it’s inflicted by a family member, a private caregiver, or an institution such as a nursing home or other residential treatment center…directed at an individual who is 65 or older.

As recently as last year, nationwide studies suggest that three to five million seniors have experienced abuse but that only one in five cases are reported. It’s these kinds of statistics that have prompted many California local law enforcement agencies to target elder abusers and to prosecute elder abuse cases swiftly and aggressively.

Continue reading "Elder Abuse on the Rise" »