April 29, 2010

The Confusion behind California's Gun Laws

California has so many gun laws on its books that it’s sometimes hard to differentiate between crimes. Carrying a concealed weapon, carrying a loaded firearm, unlawfully carrying a firearm, personally using a firearm…these are just a few of California’s gun laws that contribute to the confusion. And just when you think you understand the specifics of an offense, there are exceptions and technicalities that render the law even more confusing than ever.

Take, for instance, Penal Code 12031 PC, California’s law against carrying a loaded firearm in a public place. It appears as though this law is pretty self explanatory. Think again! Here are a couple examples to prove the point…

  1. If you intend to commit a felony and carry an unloaded gun…but also possess ammunition…the gun is technically loaded for purposes of Penal Code 12031 PC, California’s law against carrying a loaded firearm in public.

  2. If you have a loaded gun in your place of business, you are exempt from prosecution under this law. But if you carry a loaded gun in your place of business, it must be because you believe that you are in grave danger…otherwise, prosecutors could still charge you with carrying a loaded firearm in a public place.

The bottom line is that if you find yourself in the unfortunate position of being arrested for a California firearm offense, the best thing you can do is to consult with a criminal defense attorney who truly understands the ins and outs of these complex laws.

April 29, 2010

Corrupt Witness Testimony

“I promise to tell the truth, the whole truth, and nothing but the truth…” This is the oath that witnesses take before testifying in California criminal trials. We’ve all heard it, either live in a courtroom setting, in TV, or in a movie. But all too often this oath means little, if anything.

This is because witnesses are people just like everyone else. And, just like everyone else, they succumb to impulses based on temptation, greed, and/or lust. But when they do…and get caught for doing so…prosecutors will likely charge them with California Penal Code 138 PC, bribery of a witness.

Penal Code 138 PC, California’s law against bribing a witness prohibits witnesses from accepting money or anything else of value in exchange for “adjusting” their testimony. And because California’s bribery laws go both ways, Penal Code 137 PC punishes the people who offer bribes to witnesses.

No one is exempt from prosecution under these California bribery laws. Doctors, lawyers, celebrities, criminals, and innocent people alike have all been charged with these bribery offenses. But beware, bribery is usually charged as a felony, subjecting the person who offers or accepts a bribe to state prison and substantial fines.

April 28, 2010

Plea Bargains

Plea bargaining is a useful tool that is beneficial to both the prosecution and the defense. The parties typically enter into these negotiations when neither side is confident that the case will ultimately resolve in their favor.

When the defendant and prosecutor strike a deal, the prosecutor obtains a criminal conviction against the defendant and the defendant pleads guilty or “no contest” to a lesser charge and (in most cases) to a lesser sentence than he would have faced under his original charge(s).

Two of the most common plea bargain charges are Penal Code 602 PC, California’s trespassing law, and Penal Code 415 PC, disturbing the peace. Although neither crime typically relates to the underlying offense, both of these charges can be filed as either misdemeanors or infractions, which is why they are popular plea bargaining tools. Additionally, a Penal Code 602 PC, California trespassing charge invites little if any real scrutiny on a criminal record.

The fact is that the vast majority of criminal cases do not go to trial. Many defendants plead “straight up” to the charge(s) against them, while the remaining cases usually resolve when the involved parties negotiate a plea bargain.

April 27, 2010

Jesse James Finally Catches a Break...

As if a sex scandal and publicized marital problems with wife Sandra Bullock weren’t enough, West Coast Choppers’ owner Jesse James got himself into some more trouble late last month when he was cited for violating Penal Code 594 PC, California’s vandalism law.

Apparently, James got into it with a member of the paparazzi when he allegedly damaged the photographer’s car outside the star’s home. Penal Code 594 PC, California’s vandalism law prohibits damaging, defacing, or destroying another person’s property.

But because James is currently in rehab…working on his sex addiction issues…the cops can’t interview him about the incident. As a result, investigators have put his vandalism case on hold. Fortunately for James, this bodes well for his case.

Time is a friend to a criminal defendant. As time goes by, memories fade, witnesses disappear, inconsistent testimony is quite common…in essence, the prosecution’s case simply gets weaker. James is scheduled to complete rehab next month.

April 26, 2010

Vermont Woman Charged with Doctor Shopping

Late last week, a Vermont woman was charged with what police and prosecutors call “doctor shopping”. This phenomenon…actually referred to as prescription fraud…is on the rise across the country.

In fact, California has its fair share of cases, especially since Los Angeles is home to so many celebrities and other affluent people who suffer from drug addiction. This state’s “doctor shopping” laws are addressed under California Health and Safety Codes 11153 and 11173 HS.

Under these laws, a patient is guilty of “doctor shopping” or prescription fraud when he seeks the same prescription(s) from multiple doctors and/or pharmacies without telling the physicians or pharmacies about the others.

California Health and Safety Code 11173 HS punishes patients who pursue these prescriptions. Health and Safety Code 11153 HS punishes doctors who issue illegitimate prescriptions. And because this state is tough on the “war against drugs”, both of these California drug offenses subject the offender to up to three years in the state prison.

April 22, 2010

Who is Affected by California's Bribery Laws?

Pretty much everyone who is involved with (or who attempts to get involved with) a bribe. This is because California’s bribery laws apply not only to the person who offers a bribe but also to a person who asks for a bribe. Similarly, these bribery laws punish not only the person who offers the bribe but also the person who accepts the bribe.

Take, for example, Mike, a local business owner who is in jeopardy of losing his store because of a potential new zoning ordinance. If Mike offers Jeff, a local councilman, money to vote against the ordinance, prosecutors could charge Mike with Penal Code 85 PC, California’s law against bribing a legislator. If Jeff accepts the bribe, prosecutors could charge him with Penal Code 86 PC, California’s law that punishes legislators for accepting bribes.

Let’s change the facts slightly, and say that Jeff…knowing that Mike will lose his business if the ordinance passes…approaches Mike and asks if he would be interested in making a deal to save his business. Under these circumstances, prosecutors could still charge Jeff with Penal Code 86 PC for initiating a bribe.

But despite the old adage that it never hurts to ask, a California bribery conviction subjects you to state prison and substantial fines.

April 21, 2010

The Connection between Drugs and Weapons

Both the California Legislature and California courts believe that people who suffer from drug addiction are so dangerous that they cannot be trusted to own or possess firearms. Penal Code 12021 PC, California’s “felon with a firearm” law, specifically revokes a person’s constitutional right to bear arms if that individual is addicted to any narcotic drug.

The California Court of Appeals has made it clear that it believes that “addicts” will stop at nothing in order to obtain their drugs. It states, “Addicts are dependant upon an illegal source of supply, obtainable only at an inflated price. This dependence and need increases as the addict's tolerance to the drug increases. Moreover, as the narcotics user becomes more dependent upon his drug, his ability to function normally in society decreases. The addict is thus forced to obtain the wherewithal with which to purchase drugs through criminal acts…

The Court continued to opine that the individual who is addicted is likely to “convert the possession of a gun into a crime of violence” in response to the demands of his drug habit. (People v. Washington (1965) 237 Cal.App.2d 59)

Unfortunately, this blatant bias and ignorant stereotype plague California’s justice system. This is just one reason why those who suffer from drug addiction must secure the most comprehensive legal defense possible when charged with a crime.

If arrested for Penal Code 12021 PC, California’s “felon with a firearm” law…based on an allegation that you are addicted to a narcotic…it is critical to consult with a criminal defense attorney who thoroughly understands California’s laws relating to both drug crimes and firearm offenses.

April 20, 2010

The Connection between Brandishing a Weapon, Assault with a Deadly Weapon, and Criminal Threats

Although these are three completely separate charges, they are often very closely related. This is because any one of these offenses is typically (though not necessarily) carried out simultaneously with the others.

Let’s take an example. Suppose that Rich points a loaded gun at Mary and threatens to shoot her if she doesn’t comply with his demands. This type of generic situation takes place all the time.

Given these facts, Rich is guilty of Penal Code 417 PC, California’s brandishing a weapon law, California Penal Code 245 PC assault with a deadly weapon, and California Penal Code 422 criminal threats. And, depending on Rich’s actual demands, he is likely guilty of additional offenses as well.

These three offenses -- Penal Code 417 PC, California’s brandishing a weapon law, California Penal Code 245 PC assault with a deadly weapon, and California Penal Code 422 criminal threats -- all involve similar allegations. Brandishing a weapon involves exhibiting a weapon in a threatening manner. Assault with a deadly weapon involves an unlawful intent to commit a violent injury upon another person using a deadly weapon. And criminal threats involve a threat of immediate harm that places the recipient in fear.

Because these crimes are so closely connected, what seems like only one criminal act can actually trigger a host of criminal charges.

April 19, 2010

Be Careful of What You Ask For...

It’s human nature to try to talk our way out of trouble. But be careful of how you try to do so. If, for example, you’re stopped for DUI, speeding, or any other traffic violation…and ask the officer if there’s anything you can do to convince him/her not to arrest you or give you a ticket…you could face charges for bribery under California Penal Code 67 PC.

Penal Code 67 PC, California’s law dealing with bribing executive officers makes it illegal to offer an executive officer (including a cop) something of value to influence an official decision. If you outright offer money or another incentive to the officer who’s about to arrest you for drunk driving, it’s a pretty open and shut case. But, if you are simply asking if there’s anything you can do to convince him/her to let you go…and you haven’t actually offered anything of value…you’re in a grey area. An overzealous cop or D.A. could try to charge you under California’s bribery laws, even though you didn’t specify what it was you were offering in exchange for the officer’s leniency.

So before you try to talk your way out of trouble, beware: be sure you know what you’re asking for and how you’re asking for it.

April 12, 2010

DUI with a Child - Sentencing Enhancement or a Felony?

California criminal law provides that if you are DUI with a child passenger who is under 14, you will automatically face a sentencing enhancement. The additional amount of jail time you face for this enhancement depends on whether it’s your first, second, or subsequent DUI offense.

But many groups are lobbying for stricter penalties. Instead of having a DUI sentencing enhancement for driving with a child under 14, these groups are fighting to make this offense an automatic felony. This movement isn’t specific to California, but is taking place throughout the country and gaining momentum as it sees success.

As it currently stands, when a defendant is charged with DUI…and has a child of any age in the car at the time of the offense…California prosecutors have the option of additionally charging the driver with the crime of child endangerment. But even this offense is what’s known as a “wobbler”, which means that it can be charged as either a misdemeanor or a felony.

As extreme cases of DUI involving children passengers continue to receive publicity, it is likely that the California Legislature will seriously consider taking this type of action. But for now, if your California DUI defense attorney can successfully fight or reduce your DUI charge, you will not receive this automatic sentencing enhancement.

April 7, 2010

The Consequences of Staged Accidents

Staged accidents are just that -- “accidents” that are staged. Often times orchestrated by sophisticated crime rings, these intentional collisions are planned to make it look like an insured driver is at fault when, in reality, the insured driver was “set up” by the seemingly victimized party/parties.

Staged accidents are extremely dangerous and subject the individual or group who organized the collision to a variety of penalties.

The most common charge filed in connection with these accidents is Penal Code 548 PC, California’s auto insurance fraud law. If convicted of auto insurance fraud under California Penal Code 548 PC, the defendant faces a state prison sentence of up to five years plus an additional and consecutive three to six year sentence if anyone other than the defendant or an accomplice suffers a serious injury.

Another charge that is related to staged accidents is assault with a deadly weapon. Under California’s ADW law, a car qualifies as a deadly weapon and subjects the defendant to four years in the state prison, with the same possible sentencing enhancement if anyone suffers a serious injury.

If anyone is killed as a result of the “accident”, the defendant(s) will face prosecution for vehicular manslaughter. Vehicular manslaughter carries a possible ten-year prison sentence when committed during the course of a staged accident.

April 6, 2010

Bribery Comes at a High Cost…

While many people may not think of bribery as a major crime, it can subject an offender to substantial criminal penalties.

Take, for example, the most recent publicized case against Daimler AG (a powerhouse German automaker). Daimler AG is paying over $180 million to settle charges with the U.S. Securities and Exchange Commission and the U.S. Department of Justice. This settlement is based on criminal allegations that bribery was a standard business practice within the company.

The federal suit against Daimler accuses the company of making “illicit payments, directly or indirectly, to foreign government officials in order to secure and maintain business worldwide” over a ten-year period.

In this state, California’s bribery laws apply to public officials who solicit or accept bribes. California’s bribery law penalizes each act of bribery by up to four years in the state prison and by a maximum $10,000 fine or double the amount of the bribe, whichever is greater…and that’s for each act! For people or corporations that are substantially involved in this practice, you can see how the criminal penalties can quickly add up.

But perhaps one of the most devastating penalties is that public officials who are convicted of soliciting or accepting bribes may be required to forfeit their office. This social stigma can forever taint an individual’s career, family, and reputation.

April 1, 2010

When "Consensual" Sodomy Isn't...

Earlier this week, prosecutors charged a 20-year-old Alabama man with 12 counts of sodomy. The charges were based on acts that were committed over a nine-month period with a 14-year-old girl.

The police chief acknowledged that there was no force involved in the sodomy and that both parties were willing participants, but that because of the alleged victim’s age, she could not legally consent to the behavior.

Sodomy between consenting adults is legal in all 50 states. However, individuals are still subject to prosecution for illegal acts of sodomy. This includes engaging in sodomy with a minor.

For example, Penal Code 286 PC, California’s sodomy law separately punishes acts of sodomy with a minor depending on the age of the alleged victim (and sometimes even on the age of the defendant).

This is because minors are legally deemed unable to give consent. This means that even if a minor willingly engages in sodomy, the person with whom he/she engages is still subject to prosecution under Penal Code 286 PC, California’s sodomy law.

That said, if the defendant honestly and reasonably believes that the minor is an adult (that is, 18 or older) and that minor is a willing participant to the act, that mistake of age will serve as a defense. But due to social concerns about protecting young children, this mistake defense doesn’t apply to minors who are 14 or under.