September 30, 2009

Ending Penal Code 290 Registration

People convicted of certain sex offenses in California have the onerous requirement of lifetime registration as a sex offender. This means they must register with the local police every time they move and every year within 5 days of their birthday. Many sex offender registrants are displayed on the state's Megan's Law website for the world to see.

Being labeled in the community as a convicted sex offender brings terrible shame--and danger--to those on "the list." Registrants experience difficulty finding jobs, housing and friends, and many get targeted with threats and violence. Some of the fear and disdain towards registrants is warranted. But many of them are rehabilitated people trying to make a life for themselves in an increasingly hostile world.

Sex offender registration is today's equivalent of leprosy in biblical times.

Not surprisingly, we get frequent calls from people desperately seeking to a reprieve from the Penal Code 290 sex offender registration requirements. Can this be done...and how?

There's basically three paths to clearing one's status as a California registered sex offender. The first is seeking to vacate the underlying conviction that triggered the registration requirement. This usually rests on showing that the attorney was incompetent, that new exonerating evidence was discovered, or that the person pled guilty without being properly apprised of the consequences.

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September 28, 2009

Life in Prison for Forgetfulness?

People convicted of certain sex offenses in California become registered sex offenders for life. They must register with their local police department(s) every time they change their residence and every year within 5 days of their birthday.

Not completing these requirements subjects one to prosecution for Penal Code 290 Failure to Register as a Sex Offender. This is a felony punishable by up to 3 years state prison. Moreover, it counts as a strike under California three strikes law.

Many people prosecuted under Penal Code 290 already have one or two strikes on their record (stemming from the sex conviction(s) that led to the registration requirement). A two-striker who gets convicted of felony Failure to Register must go to prison for at least 25 years to life.

Not only are the Penal Code 290 requirements and penalties draconian, but California law recognizes very few excuses for failing to register. One such excuse that courts have rejected is simply "forgetting".

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September 24, 2009

Can a Bully Claim Self-Defense?

California self-defense laws allow people to use reasonable force (and even violence) to protect themselves against an attacker. The threat must be immediate and a person must use no more force than is reasonably necessary to thwart the attack.

But what if someone starts a fight? Can he claim self-defense as a legal defense against criminal charges?

For example, suppose Sam walks up and starts punching Robbie. Robbie starts punching back. Sam continues his attack, claiming now that he's defending himself. Can he do this?

Well, first of all, Sam's initial attack was clearly not for that he could get prosecuted for assault and battery at the least. But once Robbie starts fighting back, does the defense of self-defense kick in?

California law allows self-defense by an aggressor, but only if two conditions are met. First, Sam must actually and in good faith try to stop fighting. Second, he must communicate to Robbie that he wants to stop (or has stopped) fighting. If Sam does both of these and Robbie continues to fight, Sam can now fight back in lawful self-defense.

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September 23, 2009

Are You a Cop?

An old urban legend has it that undercover cops must disclose their police status if a suspect inquires. So if a drug dealer about to sell to an undercover asks "Are you a cop?", the legend has it that the UC must identify himself or else run afoul of the entrapment rules.

But California entrapment law imposes no such requirement on the police. Cops may pretend not to be cops. They may even deny adamantly their true status in order to reassure suspects. Otherwise, undercover operations would be pointless.

So where does California entrapment law draw the line? The cops can't persuade normally law-abiding citizens to engage in crime--or agree to engage in crimes--that they were not otherwise predisposed to commit. For example, if undercover cops come to your home and offer you large amounts of cash to engage in a fraud scheme--one you otherwise never would have considered--that's probably entrapment.

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September 21, 2009

Penal Code 1000 and State Licensing Agencies

Stated in Penal Code 1000, California drug diversion allows certain defendants facing narcotics charges to complete a rehab program rather than go to jail. Generally, only nonviolent first-time drug users or possessors qualify. And those who underwent a prior drug diversion program within the last five years do not.

Penal Code 1000 offers a unique feature in California law: those who successfully complete the program are immune from administrative consequences from state licensing agencies. That is, licensing boards may not consider the case or the arrest in granting, renewing or denying state licenses.

For example, suppose Lucy gets arrested for possessing a few grams of cocaine (for personal use). Lucy opts to participate in Penal Code 1000 drug diversions and completes all the requirements successfully. She later attends nursing school and applies to the Board of Registered Nursing for an RN license. The BRN may not deny her a license because of her drug arrest…nor may it use the case against her for any purpose.

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September 18, 2009

Proposition 36 & DUI Cases: Casting Too Narrow a Net

California Proposition 36 allows nonviolent drug offenders to participate in treatment programs rather than go to jail. Eligible defendants plead guilty to the underlying drug charge, and are then placed on probation and ordered to complete an outpatient program. If they do so and comply with the terms of probation, the drug case is ultimately dismissed.

But eligibility for Proposition 36 is laced with restrictions, one of which pertains to DUI charges. A person charged in the same complaint with both a nonviolent drug offense and a DUI does not qualify.

The restriction stems from language in Proposition 36 excluding "any defendant convicted, in the same case, of any misdemeanor not related to drugs or any other felony that is not a nonviolent drug possession offense." The California Supreme Court has found "misdemeanor not related to drugs" to include DUI charges.

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September 17, 2009

Arson Charges for a Child?

The L.A. Times is reporting:

Prosecutors Must Decide Whether to Charge 13-year-old Who Allegedly Started Brush Fire

September 17, 2009 | 7:28 am

Los Angeles prosecutors could decide today whether to file charges against a 13-year-old boy accused of starting the Morris fire above Azusa, which burned 2,100 acres last month.

According to the Los Angeles County Sheriff's Department, detectives presented the case to the Los Angeles County district attorney's office Wednesday.

Details of how the fire started were not immediately clear, but in a statement, the department described the boy as being "primarily responsible for igniting the fire."

The Morris fire broke out in San Gabriel Canyon on Aug. 25, the same day the much larger Station fire was sparked. The Morris fire burned areas along Highway 39 a few miles north of Azusa.

The Station fire, the largest in L.A. County history, has been declared an arson. But there are no suspects.

The story highlights a conflict for the Los Angeles County DA's Office. On the one hand, public pressure to throw the book at suspected arsonists is at an all time high...on the heels a spate of deadly and multi-billion dollar fires.

On the other hand, children generally don't face prosecution for serious crimes, unless it can be shown that they knew right from wrong. In this case, however, it's likely a 13-year-old will be deemed to have appreciated the wrongfulness of his actions...alleged actions.

September 16, 2009

Internet Sting Operations Target Child Pornography

California child pornography laws make it illegal to produce, advertise, sell, distribute or possess images depicting children engaged in stimulating sexual conduct. Offenders face prosecution, jail time and sometimes even state prison.

The internet has become the primary medium through which people search for, purchase and obtain child pornography. Numerous clandestine sites exist that furnish or sell images and videos of naked children, sometimes engaged in apparent sexual activity.

To combat this problem, local, federal and California state authorities operate numerous internet sting operations designed to nab people on both the sales and buying sides of these transactions. On the sales side, decoy cops search the internet for vendors of child porn. They pose as purchasers. Then they locate the sellers and make arrests.

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September 15, 2009

California Embezzlement as an Aggravated Form of Theft

Embezzlement under California law is the "fraudulent appropriation of property by a person to whom it has been entrusted." This used to be considered a distinct crime. But now California law treats embezzlement--and punishes it--merely as a variant of theft.

Embezzling property up to $400 in value gets prosecuted as a petty theft. Embezzling more than $400 worth of property may be punished as a grand theft. The former is a misdemeanor with a maximum sentence of a year county jail. The latter may be charged as a felony and can land someone in California state prison for up to three years.

So if they're charged under the same section, what's ultimately the distinction between embezzlement and standard theft offenses? The answer lies primarily in how the crimes get viewed by prosecutors, judges and juries.

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September 14, 2009

Blackmail as a Crime Under California Extortion Law

Most of us have seen classic "blackmail" scenarios in the movies...for example, obtaining compromising photos depicting someone's infidelity and then threatening to reveal them to the person's spouse unless he pays up.

Blackmail as such is prohibited by Penal Code 518: California extortion law. Specifically, Penal Code 518 makes it illegal to use force or threats to compel someone to give you money or other property. This includes threats to accuse the targeted person of a crime, to reveal a secret about him or his family, or to expose him to embarrassment or disgrace.

A person commits blackmail under California extortion law even if he had every right to carry out the threat. For instance, suppose Sally works at Starbucks and notices a coworker stealing money from the cash register. She threatens to report this unless the coworker gives her a cut.

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September 11, 2009

Recanting Victims Don't Stop Domestic Violence Prosecutions

California domestic violence laws make it illegal to use violent force (or threats of bodily harm) against an intimate partner. An intimate partner is usually defined as a current or former fiancé, spouse, cohabitant, boyfriend, girlfriend or the parent of your child.

Following a domestic violence arrest, it's not uncommon for the alleged victim to "recant." For example, suppose neighbors call the police to report that Tom and Sue are in a heated argument. The cops come. Sue has redness on her cheek and tells the officers that Tom had slapped her. Tom gets arrested for domestic battery.

A week later, Sue goes to the police station and changes her story. "I made the whole thing up. Tom never slapped me. I got that swollen cheek when I fell. I don't want to press charges." Is the case over? Not if prosecutors believe that Sue told the truth the first time.

California domestic violence prosecutions proceed all the time, even with recanting "victims." It's commonly believed that DV victims are prone to false recantations...because they change their mind, they make up with the accused, and they no longer want to see him prosecuted.

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September 10, 2009

Welfare Fraud - How it Works

Welfare fraud in California involves persons receiving benefits for which they are not eligible by way of providing false qualifying information. In most cases, the accused person failed to disclose income, assets or circumstances; the reporting of which would have disqualified her from further benefits.

California and the counties set strict criteria for who can receive welfare. The family must be sufficiently poor. Recipients must sign documents under penalty of perjury declaring all assets, sources of income, persons residing in the home and their contributions to the home.

Suppose, for example, that Betty is a single mother with two kids and no assets or income. Based on her circumstances, she qualifies for welfare and starts receiving benefits. But wanting to supplement her welfare income, she takes a "cash job" under the table as a receptionist. She also receives a new car as a gift from her parents. Knowing that reporting these developments would make her ineligible for benefits, she conceals them from the welfare office.

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September 9, 2009

California Burglary Law and After-Acquired Intent

Stated in Penal Code 459, California burglary law makes it a crime to enter a structure with the intent to commit petty theft or any felony inside. A person need not actually commit the theft or felony. Merely entering with the requisite intent makes a burglary complete.

The central issue in many Penal Code 459 prosecutions is when the person acquired the intent. If s/he decided to commit the theft or felony only after entering the structure, this is not a burglary.

Take an example. Marge walks into a Target store, planning to steal some batteries. As long as she intended to steal the items at or before the moment she crossed through the entry doors, she committed a burglary. Even if she changes her mind once inside the store, and elects not to steal the batteries, she still committed a burglary once she entered with the criminal intent.

Now, suppose Marge enters the Target not planning to steal anything. But once inside, it occurs to her to steal some batteries. She conceals them in her purse and exits without paying. In this example, Marge committed a petty theft. But she did not commit burglary...because at the time she entered the structure, she had not yet formed the requisite criminal intent.

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September 1, 2009

When Does a Spanking Become a Crime?

The Bible tells us that "He who spares the rod hates his son, but he who loves him is careful to discipline him."(Proverbs 13:24). But in California, adhering to this Scripture can land a parent in jail.

Stated in Penal Code 273d, California child abuse law makes it a crime to "inflict on a child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition." The law defines a "traumatic condition" simply as any visible injury, whether serious or slight.

Unfortunately, Penal Code 273d doesn't give parents a great deal of guidance as to when a justifiable "spanking" or "belting" crosses the line into criminal child abuse. Whipping an 8-year-old for misbehavior may seem proper parenting to one person, but cruel and abusive to another.

This quandary is made all the more difficult by our society's vast differences in cultures, religious beliefs and traditions...all of which influence peoples' views on this topic. Some groups within our society embrace corporal punishment as appropriate and even a moral duty...while others feel that an adult should never be allowed legally to beat a child.

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