August 28, 2012

Disposing of Assets Could be Criminal

With the economy as it is, more Americans are in debt than ever before. Bankruptcies are up, and creditors are taking legal action to collect on debts.

For a person facing action from creditors, it might be tempting to transfer, give away or otherwise dispose of assets. A debtor might transfer title of her car to a family member, for example, if she fears the asset could become the target of creditors.

Anyone in this situation should be mindful of California’s fraudulent conveyance laws. These laws can make it criminal to get rid of assets just for the purpose of keeping creditors from getting that property to settle a debt.

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August 17, 2012

How old are you again?

People telling white lies about their age is nothing new. Most people do it at some point, and many of us have been telling others a false age for years.

But if you give a false age or date of birth to the cops, you could be in real trouble.

Penal Code 148.9 makes it a crime to give a false identity or false identifying information to the police.

Penal Code 148.9 is most commonly prosecuted in the context of people giving a false or fictitious name to the police - especially during a traffic stop. But courts have ruled that this section applies to any identifying information, including one’s date of birth.

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August 16, 2012

Fire! Fire! Just Kidding.

We’ve all heard the classic maxim that you can’t cry fire in a crowded theater. To be more precise, you can’t do it if you know there really is no fire.

The maxim actually comes from Oliver Wendell Holmes, the U.S. Supreme Court justice who wrote the 1919 opinion in Schenck vs the United States. Holmes used the example to show that some forms of speech can be punished in spite of the First Amendment.

False alarms are statements that are both untrue and likely to cause harm. Therefore they don’t fall within the umbrella of protected free speech.

California law addresses just such a situation. Found in Penal Code 148.4, causing a false fire alarm is a misdemeanor. It’s not only illegal, it can send someone to jail for up to six months (longer if a person gets hurt or killed in the ensuing response).

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August 15, 2012

Can a Recanting Witness be Prosecuted?

Any prosecutor who handles domestic violence cases knows the problem of the recanting witness.

The police respond to a domestic disturbance. The wife has red marks and tells the cops that her husband punched her. He gets arrested and charged with domestic battery.

But when it comes time for trial, the wife has changed her story. Now she says she lied to the cops because she was angry. The hubby never hit her. She got the red marks when she tripped over a telephone cord.

It may well be that the wife lied to the cops initially. Now she’s coming clean with the real truth.

Or it may be that he really did hit her, just as she had reported. But she later realized that she really doesn’t want to see him convicted. Maybe she’s afraid of him. Maybe they made up. Maybe he’s the breadwinner for the family and a conviction could threaten their livelihood.

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August 14, 2012

When Does a Prank Become a Crime?

It’s not uncommon for pranksters to set off false alarms or make phony 911 calls claiming a fire, accident or some other emergency exists.

In California, doing this can get you arrested and charged with a crime.

Penal Code 148.3 - “false report of an emergency” - makes it illegal to do just that: report an emergency when you know the report to be false.

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August 6, 2012

What If a Cop Gets Caught Writing a False Report?

Police officers in California generate thousands of police reports every day. Most cops strive to be as accurate and truthful as possible.

But we all know that police sometimes lie. They lie in their crime reports. They lie on the witness stand in court. Usually they get away with it. But not always.

What happens when an officer gets caught making false statements in his/her police report?

For starters, the cop will likely face disciplinary action from the department. This could range from a warning, to suspension, to termination and loss of pension benefits.

There’s also the possibility of criminal prosecution. If the officer lies under oath at a proceeding, or lies under oath in a sworn police report, the D.A could file perjury charges. Perjury is a felony in California and carries up to four years state prison.

Even if the report is not under oath, the D.A. could still file charges under Penal Code 118.1 - police officers filing false reports. This section makes it a crime for a police officer to make a false statement about a criminal matter in any police report, regardless of whether the report is submitted under oath.

Penal Code 118.1 can be filed as a misdemeanor or a felony, and a conviction carries up to three years in state prison.

It’s true that prosecutors rarely file criminal charges against police officers for misconduct in the line of duty. But the existence of these laws should serve as a deterrent to any officer from making false statements in reports or in court.

August 1, 2012

Looting Laws Add a Mandatory Minimum for Burglary

We all remember the images of the 1992 L.A. Riots sparked by the acquittal of LAPD officers in the Rodney King beating trial. Throngs of Angelenos took advantage of the civil unrest and lawlessness to pillage clothes, TVs, electronics, and the like from stores across the region.

Entering a commercial structure with the intent to steal goods is normally prosecuted under burglary laws. A conviction triggers up to three years state prison, but no mandatory minimum. It’s different, however, if prosecutors proceed under looting laws.

Found in Penal Code 463, California looting laws apply in situations where people commit burglary or theft during an “emergency” such as a riot, flood, or earthquake.

Although burglary/looting contains the same maximum sentence as burglary generally, burglary via looting carries a mandatory minimum sentence of six months in jail. Even if the judge grants probation, the judge must impose at least six months jail, absent unusual circumstances.

The mandatory minimum reflects the legislature’s view that burglary and theft during a major emergency pose a much greater danger to public order than these crimes do during normal circumstances.