June 24, 2010

Felony Evasion of a Peace Officer Causing Injury or Death...What Happens When People Get Hurt

Yesterday we wrote about what happens when people attempt to evade the police and they willfully disregard the safety of other people and property. In that case, no actual injury need occur to be found guilty, nonetheless the punishment is still stiff (see below).

In cases where people actually hurt someone, of course, the punishment gets stiffer. In cases where someone gets killed, an offender faces up to seven years in state prison and $10,000 in fines. And that’s in addition to any applicable homicide or assault charges.

These situations are covered by California Vehicle Code section 2800.3 Felony Evasion of a Peace Officer Causing Injury or Death.

Basically, this charge involves circumstances where a marked police car driven by an officer follows you, sounds its siren, and flashes at least one red light that you should reasonably be able to see…and you refuse to stop…and you proximately cause serious bodily injury or death to another person in the process.

The two key concerns here are “serious bodily harm” and “proximate cause.”

Bottom line: “serious bodily harm” is generally considered anything requiring stitches or a cast on up; “proximate cause” means that the kind of injury the victim suffered was foreseeable to the offender.

Now, in today’s world everyone knows that cars can cause very serious injuries. And everyone knows that leading the police on a chase can result in accidents.

So you don’t want to give the police any reason to suspect that you are evading them.

Any time you find yourself being ordered to the side of the road by law enforcement, obey…even if you know there was no way you could have been in the wrong. Once pulled over, you can assert your right to remain silent, if necessary or appropriate under the circumstances.

The point is, don’t make an undesirable situation worse.

And if the police do allege that you were attempting to flee, contact a California criminal defense attorney immediately. There are several successful California defenses that can be promptly mounted on your behalf.

June 23, 2010

High-Speed Chases and Felony Evasion of a Peace Officer...What Happens When the Show's Over

At the beginning of the day, the Manhattan Beach Police Department wanted Vincent Olivadoti for a string of felonies: identity theft, burglary, drug offenses, vandalism, and more. By the end of the day, Vincent could add another one to the list: felony reckless evasion of a peace officer.

That’s because on March 24, 2010, Vincent sped away from a routine traffic stop and led the police on a terrifying high-speed chase through a highly populated- and highly pedestrian- neighborhood in Manhattan Beach. The chase ended when Vincent crashed into another car at an intersection.

But Californians should know that they can be charged with this same felony offense in much less dramatic circumstances.

The section of the vehicle code that defines this offense-CVC 2800.2- can be broken down into two basic parts:

  1. a marked police car driven by an officer follows you, sounds its siren, and flashes at least one red light that you should reasonably be able to see; and…

  2. you refuse to stop, willfully disregarding the safety of other people or property in the process.

Bottom line: felony evasion of a peace officer can put people behind bars for up to a year, slap them with as much as a $10,000 fine, and subject them to enormous civil liabilities.

But that’s not all… other laws and court decisions will hold you further responsible for the damage to life and property caused by your unlawful chase.

For offenders like Vincent Olivadoti, these penalties may not seem high enough. Indeed, the vehicle code has still harsher charges for some offenders. For others, however, the penalties may not be justified. And as law enforcement continues to crack down on the embarrassing spectacle of televised high-speed chases, we can expect an increase in the number of CVC 2800.2 charges in all circumstances… justified or not.

An experienced California criminal defense attorney will be able to distinguish between the two and successfully fight unwarranted charges.

June 18, 2010

Understanding the Difference between Robbery, Burglary, and Theft

These three California offenses are very closely related...and commonly confused. This is because each one shares “elements” with the other. Let me explain.

Penal Code 211 PC California’s robbery law punishes the act of taking someone else’s property from that person’s “immediate presence” when accomplished by force or fear. Penal Code 211 PC California’s robbery law is the most serious of these three crimes.

If you don’t use force or fear to accomplish the taking…or if the property isn’t in the person’s “immediate presence”, then you simply have a theft. Grand theft if the property’s value exceeds $400, petty theft if the value is $400 or below.

And, despite common misconception, a burglary doesn’t necessarily involve stealing. A burglary takes place when you enter a building and already have the intent to commit a felony or to steal.

This means that if you go into a house…and intend to steal once inside…you have committed burglary and theft. If during that time, someone comes home and you threaten to harm him if he stops you from taking more property, you have committed robbery, burglary, and theft.

But if you enter a store, simply intending to shop…and only form the intent to steal once inside…you don’t commit a burglary. And whether you use force or fear to accomplish the taking will determine whether or not you are only guilty of theft or also of robbery.

June 17, 2010

False Imprisonment vs. Kidnapping

Penal Code 236 PC California’s false imprisonment law and Penal Code 207 PC California’s kidnapping law are frequently confused and commonly misunderstood.

Many people believe that Penal Code 236 PC California’s false imprisonment law necessarily involves incarceration in a jail or prison. Although false imprisonment may involve such circumstances, it generally doesn’t. Simply put, false imprisonment occurs when you detain, restrain, or confine someone against their will. Felony false imprisonment takes place when you use force or fear to accomplish the detention, confinement, or restraint.

Kidnapping doesn’t necessarily mean taking a child away from his/her parent (although it could). It takes place when you use force or fear to move any person a substantial distance. This means that you can’t kidnap someone without also violating California’s false imprisonment law. If you’ve moved someone against his/her will, you have restricted that individual’s liberty…the core issue in a false imprisonment case.

If fact, because this is the case, even if a prosecutor charges you with kidnapping, a jury could find you not guilty of that offense and yet decide to convict you of false imprisonment instead.

June 16, 2010

Dissuading a Witness -- A Relatively Minor Offense...That is, Unless You're a Gang Member

Penal Code 136.1 PC California’s “dissuading a witness law” is a wobbler. A “wobbler” is an offense that prosecutors can choose to file as either a misdemeanor or a felony. When convicted of Penal Code 136.1 PC California’s “dissuading a witness law” as a misdemeanor, there is no mandatory jail sentence. The felony charge subjects an offender to between 16 months and four years in the California state prison.

Based on the fact that this crime can be a misdemeanor…and that an offender isn’t even required to serve a jail sentence…it seems as though the California Legislature doesn’t consider this offense to be one of the most serious.

Yet if this exact same offense is committed by either a gang member or an associate of the gang…for the benefit of or at the direction of the gang…he/she faces the same penalties plus a seven-year-to-life sentence.

And while it may seem that this harsh sentence violates one’s constitutional right to remain free from cruel and unusual punishment, the courts disagree, upholding this sentencing enhancement.

June 15, 2010

Top Five Reasons Why California's 10-20-Life Law is Unduly Harsh

California’s “10-20-life ‘use a gun and you’re done’” law subjects an offender to ten years in prison for using a gun, 20 years for discharging a gun, and 25-years-to-life for seriously injuring or killing another person with a gun. What’s more is that these harsh penalties are in addition and consecutive to the penalty you face for the underlying felony offense.

Here are just a few of the reasons why California’s “10-20-life ‘use a gun and you’re done’” law is unduly harsh:

  1. You can be sentenced to ten years for “using” a gun even if the gun is inoperable or unloaded.

  2. You can be sentenced to ten years for “using” a gun even if you only use it to strike someone (otherwise referred to as pistol whipping).

  3. You can be sentenced to twenty years for discharging a gun even if the gun misfires or doesn’t discharge a bullet.

  4. You can be sentenced to 25-years-to-life even if it’s not the gunshot wound that kills or injures the alleged victim.

  5. You can be sentenced to 25-years-to-life even if you’re not the one who personally uses the gun if the crime was allegedly gang-related.

June 11, 2010

Prison vs. Release

Most of the time, we would assume that being free is better than being incarcerated. But that may not be the case for sex offenders or for sexually violent predators (referred to as SVPs). When these individuals are released back into society, they are returning to anything but a “normal” life.

This is because California’s laws regarding sex offenders and sexually violent predators “SVPs” mandate that the community receiving the individual shall be notified about his/her presence and, in many situations, his/her exact address.

As you can imagine, this creates an uproar. Residents have a difficult time believing that these former inmates could possibly be rehabilitated and are outraged that these individuals are in their neighborhood.

The sex offender or SVP ends up living a life in fear and isolation. If we’re going to give these individuals a “second chance” there has to be a better way to do it fairly.

June 10, 2010

Mentally Disordered Offenders

Mentally disordered offenders (referred to as MDOs) are California state prison inmates who suffer from severe mental illness. And while it is believed that more than half of all state jail and prison inmates are affected by mental illness, MDOs only make up a small percentage of this population.

This is because the phrase “mentally disordered offenders ‘MDOs’” is a very technical one. People who suffer from illness such as depression, personality or adjustment disorders, mental retardation, drug and/or alcohol addiction, or many other relatively common mental diagnoses are excluded from the MDO class.

MDOs are exclusively offenders whose severe mental disorders caused (or largely contributed to) the offense for which the individual was imprisoned, whose condition can’t be kept in remission without treatment, and who present a substantial risk of reoffending based on their disorder.

These prisoners have their own set of California parole laws that, when necessary, prevent an individual who would otherwise be eligible for parole from ever being released.

"severe mental disorder" as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances

June 9, 2010

Authorities Bust California Drug-Trafficking Gang

Authorities arrested thirty-six alleged members and associates of the Nuestra Familia (our family) criminal street gang for drug distribution conspiracy and related charges. Each defendant faces life in prison and a $4,000,000 fine. Federal, California, and local law enforcement agencies were all working together on this operation.

These penalties are so severe because of the fact that the defendants are suspected gang members and/or affiliates. People who commit crimes “for the benefit of, at the direction of, or in association with any criminal street gang” face severe penalties under Penal Code 186.22 PC California’s criminal street gang sentencing enhancement.

Penal Code 186.22 PC California’s criminal street gang sentencing enhancement automatically elevates the penalty that is normally associated with any given crime. For example, a non-gang related home-invasion robbery carries a three, six, or nine-year California state prison sentence. The same crime, when committed “for the benefit of, at the direction of, or in association with any criminal street gang”, carries a sentence of 15-years-to-life.

These enhanced penalties apply to everyone who participates in an offense, whether or not they are leaders, members, or simply “acquaintances” of the gang if the prosecution can prove that the motivation for the offense is gang-related.

June 7, 2010

California Gun Laws

California firearm offenses seem to be on the rise. It’s as if there’s always a news story about a celebrity being charged with carrying a concealed weapon, someone being held-up at gun point, an innocent victim being gunned down in a drive-by shooting, or a domestic violence charge that involves gun allegations.

There’s no doubt about it…we are a society that loves our weapons. And when you couple this with the fact that there are literally dozens of California firearm offenses on the books, you’re bound to hear about numerous allegations involving violations of California gun laws.

The problem is that California firearm offenses are technical and complex. Many of them overlap with each other and subject a defendant to illegal sentences for multiple convictions based on the same underlying conduct. Similarly, there are so many sentencing enhancements for personal gun use, that it’s easy for an alleged offender to receive a sentence that exposes him to years of unjust prison time.

This is why is it critical for anyone accused of violating one of California’s gun laws to consult with a criminal defense attorney who thoroughly understands California firearm offenses and the many defenses that are applicable to these serious charges.

June 4, 2010

The Difference Between Negligently Discharging a Firearm and Shooting at an Inhabited Dwelling

Penal Code 246 PC “shooting at an inhabited dwelling” prohibits intentionally firing a gun at an inhabited home or occupied car. And, for that matter, it’s not even necessary that you fire “at” a home or car…simply shooting in close proximity to the object is enough to trigger this charge.

Penal Code 246.3 PC California’s law against negligently discharging a firearm prohibits willfully firing a gun in a manner that could result in a person’s death or serious bodily injury. Unlike 246 PC, this law doesn’t involve a specific target. But both laws are designed to deter people from firing guns in situations that are likely to harm others.

And despite the fact that these laws are so similar, their punishments are not. Penal Code 246.3 PC California’s law against negligently discharging a firearm is considered a much less serious offense than shooting at an inhabited dwelling. There is no mandatory period of incarceration and, at the most, you’ll serve a three-year prison term.

Penal Code 246 PC, however, subjects you to a minimum six-month county jail sentence or to a three, five, or seven-year California State Prison sentence. This charge also typically encourages the prosecutor to additionally charge you with attempted murder.

Similar charges – very different penalties.

June 2, 2010

Shooting at an Inhabited Dwelling and its Connection to Murder

Penal Code 246 PC California’s law against “shooting at an inhabited dwelling” prohibits willfully and maliciously firing a gun at a “lived in” home, regardless of whether anyone is home at the time.

But if the prosecutor can prove that you specifically intended to kill someone inside the house, he/she can charge you with attempted murder. Simply shooting at (or even in close proximity to) the house isn’t enough. The prosecution must be able to prove that you had the specific intent to kill another person before a judge or jury can convict you of attempted murder.

However if you do kill someone…even accidentally…prosecutors could elect to charge you with murder or with a sentencing enhancement under California’s “10-20-life” law. But because California courts have held that Penal Code 246 PC California’s law against “shooting at an inhabited dwelling” is “assaultive in nature” it does not subject you to automatic murder charges under California’s felony murder rule…despite the fact that courts have also held that it is an “inherently dangerous crime”.