California Criminal Defense Blog

California and Nevada both take a progressive view of drug possession cases. Instead of punishing defendants with prison and a conviction on their record, the courts offer "diversion" programs to rehabilitate the defendants. If successful, their cases are dismissed and they can petition to seal their records right away.

California's main programs that offer treatment instead of prison are PC 1000 and Proposition 36. PC 1000 lasts eighteen months and is open to people charged with simple possession or being under the influence. Prop 36 is similar except that it doesn't prevent you from having your license revoked.

Nevada's main drug diversion program for possession charges is Nevada Drug Court. Nevada drug court typically lasts a year and consists of weekly or biweekly drug counseling sessions and court appearances. Completing Nevada drug court usually relieves you from getting a conviction, and you can legally deny during job interviews that you've ever been charged.

As New Year’s Eve approaches, no doubt people will be partying. This includes the underage group as well. So as you are entering the market, liquor store or another retail establishment where they sell alcohol, beware of any minors who ask you to buy some for them. We offer this warning because furnishing alcohol to a minor is a crime in California.

You “furnish” alcohol to a minor anytime you (1) give alcohol to a minor, or (2) purchase alcohol for a minor.

Many people are caught committing this crime when they agree to buy alcohol for an undercover cop who is posing as a minor. You may think that buying alcohol for a teenager is no big deal, or you may even believe that the person is of age but simply “forgot” his/her I.D. and that you are doing him/her a favor. Unfortunately for you, the state of California doesn’t look at it this same way.

California’s law against furnishing alcohol to a minor is a misdemeanor that subjects you to substantial fines, a possible jail sentence and additional criminal charges. If you are approached by someone who asks you to buy them alcohol, remember the old saying…just say “no”. You’ll save yourself a world of trouble.

We see it every day…people “running in” to do an errand while their dog or cat remains in the car. Often times, we as pet owners (or even bystanders) don’t give it a second thought. Many people leave the windows cracked, some do not. But the fact is that leaving your pet in an unattended car is a crime in California.

Let me backtrack…leaving your pet in an unattended car is not always a crime. If there is no possibility that the animal’s health, safety or well-being will be endangered, then leaving your animal behind is okay. The problem lies in the fact that determining when the animal may be in danger is an issue that different people will see differently. You may believe that your animal is okay by itself for 20 minutes with no food or water in the 75 degree heat. However, an animal control officer, police officer, judge or jury may see things differently.

And the fact is that even mild outside temperatures can cause the temperature inside a car to escalate very quickly. It’s this scenario that actually causes the most problems for these unattended animals and leads to the vast majority of arrests for this offense.

So animal owners, think twice about leaving your pet behind. A conviction for this misdemeanor subjects you to potential jail time and fines. Unless it’s absolutely necessary to bring your pet along for the ride, you might want to consider leaving him/her at home.

In a rather disturbing case, the Los Angeles City Attorney’s Office announced it convicted a 62-year-old transient male for violating California’s animal abuse laws based on an incident where he was seen having sex with a dog in public under a freeway underpass. This was not the man’s first allegation of animal abuse, as he had previously been reported for mistreating additional animals. Apparently, the defendant had regularly adopted dogs from the South Los Angeles Animal Shelter throughout the years.

This case serves as an example as to just how far California’s animal abuse and neglect laws reach. California routinely prosecutes animal abuse cases that involve physical violence, neglect, sexual abuse, cockfighting/dogfighting, etc…basically any offense that endangers the health, safety and/or well-being of an animal.

And, despite the fact that animal sexual abuse sounds like it involves an unwelcome assault, you can be convicted of sexually abusing / sexually assaulting an animal if you engage in any sexual conduct for the purpose of sexually arousing or gratifying yourself…even if the animal doesn’t resist (or even if it appears to enjoy the activity).

Three defendants in New Mexico will be the first to be tried under the new federal hate crimes legislation that President Obama signed into law in October 2009. Known as The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, this hate crimes law expanded the nation’s older hate crimes law that

1) required an individual to be involved in a “federally protected activity” (such as attending school or voting) before he/she could become the victim of a hate crime, and

2) didn’t afford hate crime protection to victims based on gender, gender identity, sexual orientation, or disability.

In this case, the three defendants allegedly shaped a coat hanger into a swastika, placed it on a heated stove and then branded it onto the arm of a 22-year-old mentally disabled Navajo man. They also shaved a swastika onto the back of the victim’s head and used markers to write hate messages on the victim’s body, all making reference to “white supremacy”.

If convicted, each defendant could face up to ten years in prison.

It is also important to note that many states have their own hate crimes laws. In fact, California’s hate crimes laws are among the toughest in the nation. If you commit a hate crime in a state that has its own hate crimes legislation, you could face charges under state and federal law, subjecting you to even more severe penalties.

Although they are often charged together, “pimping and pandering” are actually two separate offenses. The similarities are huge -- they both revolve around the crime of prostitution and both subject an offender to the exact same penalties and punishment. However, they do prohibit slightly different conduct. So here’s a brief overview of the difference between California’s pimping and pandering laws.

On one hand, Penal Code 266h California’s pimping law prohibits “soliciting” prostitution (that is, finding customers willing to pay money in exchange for sexual acts), and/or collecting part or all of a prostitute’s pay. The bottom line is that pimping involves collecting money from either the prostitute and/or the customer.

On the other hand, Penal Code 266i California’s pandering law prohibits encouraging someone to become or remain a prostitute and/or making a prostitute available to another person. Running a prostitution service or “brothel” is the most common violation of pandering. You “pander” when you make prostitutes available for sexual services.

Both crimes are felonies, subjecting you to a state prison sentence and possible sex offender registration. This is why, if at all possible, you and your defense attorney should try to negotiate a deal to a reduced charge that doesn’t carry the types of severe penalties that are imposed in connection with California’s pimping and pandering laws.

When you hear the phrase “contributing to the delinquency of a minor”, you probably picture an adult buying alcohol for a minor. At least, that’s what most people probably picture, as that is one of the most common violations of this law. However California’s “contributing to the delinquency of a minor” law is actually much broader. In fact, this law pretty much serves as a “catchall” for any crime that potentially affects the well-being of a child.

Buying booze for a minor, encouraging a minor to “skip” school, committing a sex offense against a minor, “sexting” a minor (that is, sending sexually explicit text messages or photos to another person via a cell phone)…the list goes on and on. And the interesting thing about this law is that is can be charged against anyone…even a minor who contributes to the delinquency of another minor.

The good news is that this offense is relatively minor…a misdemeanor that subjects you to a maximum one-year county jail sentence. The bad news is that because it is so broad, prosecutors can often obtain a conviction under this section when they don’t quite have enough evidence to convict you of a more serious, more specific charge.

California predatory lending schemes are not new. In fact, this type of fraud involving outright deception that takes advantage of unsuspecting borrowers has been around for quite some time. But as our state’s housing crisis became more and more disastrous, predatory lending scams grew, which is why they have been getting so much publicity.

Because California predatory lending schemes can cause so much financial damage…to already distressed homeowners and lending institutions alike…the government is eager to invest its resources into prosecuting offenders. This is why many federal, state and local law enforcement agencies have set up task forces to deal with this type of mortgage fraud.

Unfortunately, many victims of predatory lending scams do not realize that they have been illegally preyed upon. This is because of the fact that predatory lenders often seek borrowers who are elderly and/or unsophisticated and will therefore be less suspicious and more agreeable to whatever loan / refinance terms are presented to them.

If you believe that you or a loved one is facing unjustifiable and unreasonable loan terms…terms that are clearly not in the borrower’s interest…you should consider contacting your local law enforcement agency. And if you have been accused of being involved in a predatory lending scheme, you should immediately contact an experienced California real estate fraud defense attorney.

Both state and federal law enforcement agencies have developed task forces to deal with some of the most pressing real estate fraud scams plaguing today’s society. One of the most common types of mortgage fraud taking place in California is referred to as illegal property flipping.

Illegal property flipping in California typically goes a little something like this - a buyer purchases a property, fraudulently inflates the appraisal, sells to a “straw buyer”, obtains a loan based on the inflated appraisal, pays a fee to the “straw”, makes a few (if any) payments to the bank, “walks” with the money, and leaves the lender with a mortgage for a property that is worth significantly more than the home.

Illegal property flipping costs banks millions and even billions of dollars, since they dole out these loans that go unpaid…loans that they can’t recoup from a new buyer, since the home isn’t worth what they lent.

And because so many players are often involved with (and “in” on) these schemes…typically, the buyer, a “straw buyer”, the appraiser, the mortgage broker, and, perhaps a real estate broker…making sure the right parties are prosecuted can be difficult.

This is why law enforcement is trying to crackdown on this illegal practice. In fact, the FBI has even gone so far as to make this statement - “Those who prey on the housing market should know that hundreds of FBI agents on task forces and their law enforcement partners are tracking down your schemes, and you will be brought to justice.”

Forging deeds has, unfortunately, become quite common in California. People forge property deeds over to themselves and then record…or attempt to record…the deed to claim ownership of the property. This type of fraud is serious…forging deeds not only wreaks havoc on the lives of those who truly own the property, but it also subjects the forger to severe penalties.

Take, for example, a case that was filed earlier this year, where a man from San Francisco was charged with 16 felony counts based on his alleged fraudulent transfer of a woman’s three condominiums to himself. As reported, the defendant forged the deeds, filed them with the assessor’s office, obtained title to the $7.5 million in properties and then took out $2.2 million in loans against the properties. If convicted, he faces decades in prison and substantial fines for his involvement with this real estate scheme.

The true owner was unaware that this transfer had taken place until she began receiving mail for the defendant at her address. After becoming suspicious that something was up, she contacted the police and discovered the truth.

If you begin receiving mail for an unknown person at your address, solicitations from new lenders, or “welcome packages” after you’ve owned your home for quite a while, these oddities should serve as a warning that something’s not right.

Contact your local law enforcement agency about the possibility that someone may have committed deed forgery.

The Los Angeles District Attorney’s Office charged eight people with over 76 counts of California real estate fraud. The scam, which generated $13 million in profit, involved more than 20 properties. Charges for these crimes include grand theft, forgery, perjury and failure to file income tax returns. Many of these charges arise from involvement with California “straw buyer” schemes.

California “straw buyer” schemes involve individuals…known as straw buyers…who knowingly agree to purchase or acquire property for someone who is personally unable to complete the transaction. And while this may not seem like a serious offense, it constitutes fraud.

In fact, with respect to this case, the network of straw buyers obtained fraudulent financing for 23 properties, each ranging from $500,000 to $700,000. Eight financial institutions were defrauded as a result of these straw buyer schemes.

If convicted of these offenses, the “orchestrator” of the scam faces 72 years in the California state prison. Other people involved in processing these fraudulent straw buyer transactions face similar sentences…one faces 65 years in prison and another faces 70 years.

As we all know, California’s current real estate market is ripe with foreclosures. Many people are unable to afford their mortgages…or are upside down on their homes…and simply stop making payments to the bank. Most homeowners realize that doing so will likely result in them losing their homes, as well as their credit. As a result, desperate homeowners are vulnerable to scams, as they are willing to do whatever it takes to keep their homes. California’s rent skimming laws play a role in helping to discourage the fraudulent practices that adversely affect these individuals.

An individual violates California’s rent skimming laws when he convinces a homeowner…a homeowner who is facing foreclosure…to transfer ownership of the property through a trust to the individual offering to help. He explains that by doing so, he will save the homeowner’s credit and allow the homeowner to remain in the home and pay rent to the “rescuer”.

That individual, who now owns the house, collects rent as long as he can stall the foreclosure. He makes no payments to the bank, “pockets” the rent, and walks away when the bank finally forecloses. The original owner is then evicted from the property and has no credit to speak of.

If you are facing foreclosure, contact an attorney for help. There are ways to modify your home loan so that you can legitimately work with your lender to avoid foreclosure. If someone approaches you, it should raise a red flag. Be wary of rent skimming and do not sign any papers before discussing the situation with a trusted attorney or real estate advisor.

Persons that are detained by the police for suspected criminal activity should NEVER give a statement.

Whether you are being detained for a simple traffic violation or for a serious crime, DO NOT make a statement. You should always invoke your right to remain silent.

The majority of the public think the police must advise them of their Miranda rights before questioning them. This is not true. There are numerous exceptions to the Miranda rule and the Supreme court is slowly eroding the Miranda ruling. Remember the police are not your friend if you are suspected of a criminal act. Nothing good will come from giving a voluntary statement.

If you are placed under arrest, you should NEVER give up your right to remain silent. Invoke your right and demand for an attorney to be present. The officers will play mind games with you and tell you that the District Attorney will go easy on you if you tell the truth. I have seen officers play on suspects religious beliefs by saying "Do you believe in God? God forgives everyone." If they have not placed you under arrest, many times the officer will say he doesn't want to arrest you but he will have to unless you provide a statement.

If they have enough evidence they will arrest you regardless of whether or not you give a statement. Do not make a conviction easy for them by giving a statement that may incriminate you. They will try to use any little inconsistency against you. Even if you are completely innocent of the crime, you should always invoke your right to remain silent and demand to speak to an attorney. I have seen numerous defendants get convicted by giving a statement. Many of these cases would have never been filed by the prosecutor if the defendant had just remained silent.

The courts have generally upheld California’s Three Strikes Law as constitutional. However, there are times when its application constitutes “cruel and unusual” punishment which is unconstitutional. Fortunately, when this is the case, the law provides a remedy…you can appeal a California “Three Strikes” sentence.

California’s “Three Strikes” law was originally designed to keep habitual, violent criminals behind bars. The law significantly enhances prison sentences for individuals who commit serious or violent felonies. Once an individual has committed two of these offenses, he/she faces a mandatory 25-years-to-life in prison for committing any felony…even if that third felony isn’t classified as serious or violent.

Hypothetically speaking, this means that someone who has committed two serious felonies who goes on to steal some medicine for his sick child…medicine which he cannot otherwise afford…could be imprisoned for life. Clearly, this type of situation qualifies as cruel and unusual punishment. And if this fictional character was sentenced to 25-years-to-life based on this offense, he could appeal his California “Three Strikes” sentence.

The fact is that this hypothetical situation is not all that uncommon with respect to “Three Strikes” sentences. And thankfully, the courts are beginning to recognize how cruel and unusual this sentencing scheme actually is.

If you or a loved one has been unfairly sentenced under this problematic and oftentimes unconstitutional law, you should immediately consult with an appellate attorney about appealing the California “Three Strikes” sentence.

If you wish to appeal your California state conviction, you file your appeal in either the Appellate Division of the Superior Court or in the California Court of Appeal and then, if necessary, with the Supreme Court of California. However, if you wish to appeal your California federal conviction, you would file a California federal appeal with the United States Court of Appeal for the Ninth Circuit and, if need be, ultimately with the United States Supreme Court.

Not only do the courts differ when it comes to filing appeals, but the rules and regulations differ as well. For example, the filing timelines and deadlines, the length of the written briefs, the time permitted for oral arguments, and the overall “tone” of the California federal appellate system is different from the state system…and, traditionally, more conservative.

Attorneys also need separate bar admission to practice law in California federal courts. This means that if, for example, you wish to appeal your federal conviction, you will have to hire an attorney who is eligible to file a California federal appeal. Many attorneys are able to file California federal appeals as well as California state appeals, because they obtain bar admission to both judicial systems.

The bottom line is to make sure that you consult with an experienced California appeals lawyer should you choose to pursue a California appeal, regardless of whether you are filing in the federal or state courts. Even though there are differences within the two courts, there are even bigger differences between trials and appeals. An attorney who is unfamiliar with appellate law will surely do you a disservice in either court.