California Criminal Defense Blog

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.

There are a number of precautionary steps within California’s criminal justice system to try to prevent innocent people from being wrongly prosecuted and convicted. One of these steps is a preliminary hearing. A preliminary hearing is held at the beginning of a felony case. Its purpose is to make sure that the prosecution has “probable cause” (that is, sufficient evidence) to “hold you to answer” for your charge(s).

But fortunately, even this type of proceeding is subject to additional “checks and balances”. This is because sometimes the judge simply gets it wrong. When this is the case, California criminal defense attorneys file what is known as a California Penal Code 995 motion to set aside the information.

A California Penal Code 995 motion to set aside the information is a request for a judge to dismiss one or more of the charges against the defendant. The defense files this motion immediately following a preliminary hearing when the defendant has either (1) been illegally committed, or (2) committed without probable cause.

If successful, the requested charge(s) will be dismissed, and the prosecution may even be inclined to offer you a generous plea bargain for any remaining counts. If denied, there is yet another possible remedy to cure the mistake…an appeal.

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.

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.

Cesar Ulloa, a former employee at the upscale Calabasas Silverado Senior Living Center, is in trial this week. The Los Angeles District Attorney’s office charged Ulloa with seven counts of elder abuse and one count of torture for abusing and mistreating the center’s elderly patients.

Elder abuse is a “wobbler” which means that the prosecutor has the discretion to charge the offense as a misdemeanor or a felony. However, Penal Code 206 PC, California’s torture law is a violent felony that subjects Ulloa to a life sentence if convicted.

Witnesses testified that Ulloa engaged in “wrestling” type-moves with the patients, many of whom lacked the mental and/or physical capacity to report the abuse. Some of the reports include accounts that Ulloa jumped off a dresser and landed knees first onto a patient’s stomach, that he body-slammed a female patient, that he severely beat a mute patient, and that he used one patient’s arm to hit another patient to encourage a fight.

If confirmed, the elder abuse charges are a given. It is the California Penal Code 206 PC “torture” charge that will be more difficult to prove. In order to convict Ulloa of torture, the D.A. must prove that Ulloa intended to cause “cruel or extreme pain and suffering” for personal satisfaction.

Ulloa’s criminal defense attorney is arguing that the charges are based on false allegations from co-workers who were jealous of Ulloa’s quick success within the facility.

Earlier this month, a California woman was convicted of aggravated mayhem and torture for throwing a gasoline-filled beer can at a stripper and then setting the woman on fire. She was sentenced to life in prison. The incident took place last year outside of a San Fernando Valley strip club.

Penal Code 205 PC, California’s aggravated mayhem law punishes disfiguring or disabling another person while exhibiting extreme or reckless disregard for that individual’s physical or psychological well-being.

It is the “extreme or reckless disregard for the victim” that distinguishes aggravated mayhem under Penal Code 205 PC from Penal Code 203 PC, California’s “traditional” mayhem law. That same mental state is why aggravated mayhem’s penalty is so much more severe. The penalty for aggravated mayhem is a life sentence. In contrast, “traditional” mayhem is punishable by two, four, or eight years in prison.

Although the defense attorney tried to mitigate her client’s culpability by arguing that she has “a history of emotional problems and a short temper”, the jury didn’t believe that history was enough to overcome the “extreme disregard” for the victim’s well-being.

Contrary to popular belief, it is the prosecutor, not the victim who determines whether to file or drop California domestic violence charges. Many California prosecuting agencies go so far as to subscribe to a “no drop” policy. This means that even if the victim doesn’t want to “press charges”, the prosecutor will not “drop” the case.

There are two main reasons why prosecutors follow this protocol. The first is purely political. Due in large part to the O.J. Simpson murders trial, this state has vowed to take an aggressive stance on domestic violence charges.

The second has to do with a common phenomenon known as the recanting victim. “Recanting victims” are alleged victims of domestic abuse who change their stories once charges are officially filed.

The fact is that many victims initiate false spousal abuse charges and then decide they want to come clean. Unfortunately, by then it’s too late. Prosecutors and the “no drop” policy oftentimes proceed on the incorrect assumption that the original report is true and that the victim is only changing her mind because (1) she is scared of the abuse she will face after testifying, and/or (2) she doesn’t want to lose her financial support.

Because of this policy, it is a good idea for all parties involved in a domestic abuse case to consult with a skilled California domestic violence lawyer who knows the most effective ways to reconcile spousal battery cases before they get out of hand.

In fact, under California law, they are treated quite differently. Civil negligence (sometimes referred to as “ordinary” negligence) involves simple carelessness. California criminal negligence, on the other hand, involves extreme recklessness.

If you are guilty of ordinary negligence, it means that you didn’t act in the same manner as a theoretical “reasonable” person in your same shoes. Let’s say that you’re involved in an accident on one of our many overcrowded Los Angeles freeways. While you are applying your eye-makeup, you don’t realize that traffic is stopped and, as a result, you rear-end the car in front of you. This is an example of civil negligence.

Now let’s change the facts. You’re on that same crowded freeway but this time acknowledge that traffic is at a stand-still. You’re late for work, so you decide to drive 90mph on the shoulder. As you’re applying that last bit of makeup, you fail to see the stalled car up ahead, rear-end that car, and seriously injure the driver.

This is an example of criminal or “gross” negligence. Not only are you driving on the shoulder, but you’re driving at excessive speeds and simultaneously applying makeup. This is a gross departure from how that same fictitious “reasonable” person would act under the same circumstances.

Unlike civil negligence (which is more or less synonymous with carelessness), California criminal negligence necessarily involves an “I don’t care what happens” reckless attitude towards human life. Consequently, acts involving criminal negligence can result in substantial jail or prison sentences, whereas civil negligence typically (though not always) won’t subject you to criminal sanctions at all.

Perhaps the most relatively recent controversial product of the often criticized California felony-murder rule is Brandon Hein. Brandon Hein, then 17, was sentenced to life in prison for his involvement in the 1995 stabbing of another teenager. The case received much publicity based on the application of the felony-murder rule.

California’s felony-murder rule holds a defendant liable for murder if he or an accomplice kills another person during the commission of (1) specifically listed felonies, or (2) “inherently dangerous” felonies. Hein’s case involved an alleged robbery, which is one of the specifically listed felonies that triggers this rule.

Hein and the other teens charged in connection with the murder claimed that they went to a house to buy marijuana when a fist fight erupted. The fight ended when the victim (the 15-year old son of a Los Angeles Police Department veteran) was stabbed in the chest by one of the teens.

Prosecutors painted a different picture, saying that the boys went to the house to steal the marijuana. Because of California’s felony-murder rule, all of the teens involved in the fight were convicted as if each of them personally stabbed the victim. This was despite the fact that all of them denied even knowing that the individual who stabbed the victim did so…or, for that matter, that he even had a weapon.

In an effort to

• improve parole supervision,


• relieve California’s over-crowded prisons, and


• reduce recidivism (that is, the number of people who are released from prison and go on to commit new crimes),

the California Department of Corrections recently launched a new program…non-revocable parole.

When a parolee allegedly violates his/her parole conditions, he/she is entitled to a California parole revocation hearing. At that hearing, the hearing commissioner determines whether there is enough evidence to revoke the parolee’s status and return him/her to the California state prison.

However, under the non-revocable parole program, certain parolees will not attend California parole revocation hearings. Individuals who are placed on non-revocable parole will only be returned to prison if they are arrested for a new offense…and only if they are convicted of that offense in the same manner as any other criminal defendant.

In addition, parolees on the non-revocable parole program don’t report to a parole officer. They do, however, remain subject to warrantless searches by the police.

California essentially subscribes to a mandatory parole program. In theory, this means that all eligible inmates who come up for parole will be granted parole. In reality, this means something completely different.

You see, before a “lifer” is placed on parole, he/she must appear before the parole board for a California Board of Parole “Lifer” Hearing. During one of these parole suitability or “lifer” hearings, the California parole board evaluates whether or not it believes that an inmate is “ready to be returned to society”.

Eligible parolees are supposed to be paroled unless they present an overriding public safety risk. What constitutes an “overriding public safety risk” is very discretionary and, as I’m sure you can imagine, very open to interpretation.

Although parole rates in the last few years have grown…due in large part to overcrowded California state prisons and the state’s budget crisis…certain classes of felons are surely more subject to scrutiny than others. It is these inmates who attend more than their share of hearings before being released on parole.

This is just one reason why it is so important to consult with a California criminal defense attorney who understands the most effective ways to convince the Board of Parole Hearings that you have been rehabilitated and are therefore ready and eager to become a “productive member of society”.

R&B singer D’Angelo, whose real name is Michael Archer, was arrested in Manhattan over the weekend for allegedly offering an undercover cop posing as a prostitute $40 for oral sex. D’Angelo is maintaining his innocence and has plead not guilty to the charge.

So, the big question is, will D’Angelo argue that he was entrapped? The legal defense of entrapment is raised almost every time an undercover cop is involved in a case alleging solicitation of a prostitute.

In California, for example, the Los Angeles Police Department is notorious for sending out “decoy” officers to pose as prostitutes. These undercover cops look for “johns” to engage in conversation and to ultimately arrest for soliciting illegal sex.

Under California law, entrapment only refers to situations where a law-abiding person is coerced into committing a crime that he/she otherwise would not have. If the officer simply offered D’Angelo sex in exchange for money, her conduct wouldn’t rise to the level of entrapment. If, however, she appealed to his ego and used flattery to get him to put up the cash, he could absolutely claim that he was entrapped.

Whether the conversation was recorded, whether there were any other witnesses to the alleged conversation, and the specifics of the conversation will all be critical issues in D’Angelo’s defense.

Earlier this month, a San Francisco jury acquitted a man of battery on a code enforcement officer following a two-day trial. The facts revealed that, upon seeing a “meter maid” approaching a parked car, the defendant decided to be a Good Samaritan and fed the expired meter for the owner. The parking enforcement officer became irate and began yelling at the defendant. After still issuing the ticket, the officer drove away when the defendant spit on the meter maid’s vehicle.

Had he been convicted under California’s misdemeanor “Battery on a Peace Officer” law, he would have faced up to one year in a county jail and a maximum $2,000 fine.

Fortunately, the jury recognized that, although the defendant’s act may have technically qualified as a misdemeanor battery on a peace officer…since a battery is any unwanted, unjustified, or offensive use of force on another person or on something closely connected to the person…they obviously didn’t feel he deserved to be punished for the alleged offense.

Kudos to a jury who allowed common sense to factor into their verdict!

People quite often refer to an assault as an “assault and battery”. While it’s definitely possible to commit an “assault and battery” the two are, in fact, separate crimes. Here’s the distinction…

A California Penal Code 240 PC “assault” takes place when you attempt to harm or injure another person. As long as you have the ability and desire to inflict an injury on someone, the crime is completed as soon as you attempt to injure that person.

It doesn’t matter whether you actually make contact with the individual or whether you actually injure that person. If you attempt to contact a person in a way that is likely to inflict harm, you have committed a California Penal Code 240 PC assault.

A battery, on the other hand, takes place when that attempt is completed…which is why battery is sometimes referred to as a “completed assault”. A battery necessarily involves physical contact. The contact doesn’t have to result in an injury (any unwanted or offensive touching will suffice).

This means that if you take a swing at someone during a fight, you could be guilty of assault. If you connect your punch, you could be guilty of assault and battery.

In law, we frequently refer to the “burden of proof”. This legal term refers to how much proof the prosecutor or plaintiff needs before he/she can obtain a ruling against the defendant. Two of the most common “burdens” are “preponderance of the evidence” and “beyond a reasonable doubt”.

Preponderance of the evidence is most frequently used in civil cases, although it is also used in criminal proceedings as well. It means “more likely than not”. Put another way, if it is 51% likely that the defendant committed the alleged act, he is liable. With respect to criminal proceedings, this burden in sometimes used during hearings, such as a California probation violation hearing.

The reason that a civil burden is used in criminal hearings is because these proceedings don’t afford criminal defendants as much protection as criminal trials do. Using the example above, this means that the prosecutor must only prove that it is more likely than not that a defendant violated his probation in order to find him guilty during a California probation violation hearing.

Beyond a reasonable doubt is the typical criminal burden of proof…and a bit trickier to define. It basically means that if there is no reasonable explanation other than the fact that the defendant committed the alleged act, then he must be guilty. This is the burden that is exclusively used during criminal trials, as it is California’s highest burden of proof.

California’s legal definition of “great bodily injury” is a significant or substantial injury.
Otherwise known as “GBI” or “great bodily harm”, great bodily injury is a sentencing enhancement. This means that when a defendant is convicted of a California criminal offense…and during that offense, he caused another person to suffer great bodily injury...he faces a greater penalty than he otherwise would have.

Great bodily harm is only supposed to be alleged under the most severe circumstances. When charged and proven, it subjects an offender to a three to six year California State Prison sentence in addition and consecutive to the sentence he/she will serve for the underlying offense.

The problem is that overzealous prosecutors charge this enhancement almost routinely anytime someone is injured. Even injuries as insignificant as scratches, red-marks, or simple bruises are being labeled “great bodily injuries”.

Fortunately, good California criminal defense lawyers understand that GBI is more severe than the type of injury that would normally result from a violent act…and know how to effectively convey that message to a judge and jury.

As with anything in this world, there are always going to be exceptions to the rule. But in general, California nursing homes are staffed by caring, nurturing individuals who truly want to help others.

The problem is lies in the awful reputation that plagues nursing homes. While it’s true that elder abuse in California nursing homes is common, it’s certainly not the norm. But anytime an elder who lives in one of these long-term care facilities is unhappy, injured, or ill, the staff is automatically suspected of abuse.

Continue reading "The Unfortunate Plight of Nursing Home Employees" »

I was at my grandfather’s house earlier this week. As he was opening his mail, he became very excited. He received a letter informing him that he had won $2,500,000.00 and just needed to send a $20 “handling” fee to secure his prize. As he reached for his checkbook, I had to break the news to him…this was simply a scam.

My grandfather is a well respected and well educated doctor…and had I not been there, would have been a victim of financial elder abuse, otherwise known as “senior fraud”.

California financial elder abuse or “senior fraud” is punished under Penal Code 368 PC. It can include anything from stealing money from an elder’s wallet (a California elder is someone who is 65 or older), to scamming an elder out of money (like the letter sent to my grandfather), to sophisticated offenses like transferring an elder’s entire estate into your own name.

Not always easily detectible…nor always easily provable…California financial elder abuse is on the rise and…as a result…law enforcement officers are on the lookout.

Elder abuse has become a growing concern in California. Broadly defined in California’s Welfare and Institution Code and in Penal Code 368 PC, “elder abuse” is any abuse, whether it’s physical, emotional, financial…and whether it’s inflicted by a family member, a private caregiver, or an institution such as a nursing home or other residential treatment center…directed at an individual who is 65 or older.

As recently as last year, nationwide studies suggest that three to five million seniors have experienced abuse but that only one in five cases are reported. It’s these kinds of statistics that have prompted many California local law enforcement agencies to target elder abusers and to prosecute elder abuse cases swiftly and aggressively.

Continue reading "Elder Abuse on the Rise" »

What’s interesting about this case is the fact that these child molestation charges arise out of a series of incidents that took place between 1994 and 1997…which means that the statute of limitations (the time by which criminal charges must be filed) has already expired.

Prosecutors charged Melvin “Shane” Sparks, a judge on “America’s Best Dance Crew” and a choreographer on “So You Think You Can Dance”, with eight felony counts of lewd acts with a child under California Penal Code 288 late last month.

The Los Angeles District Attorney’s Office is relying on a California Penal Code 801(f) that provides that the statute of limitations for certain sex offenses committed against minors may be extended if the following three conditions are satisfied: (1) the statute of limitations has otherwise expired, (2) the crime(s) involved substantial sexual conduct, and (3) there is clear and convincing evidence that corroborates the victim’s allegations. According to the Los Angeles D.A.’s Office, each of these conditions has been fulfilled.

If Sparks is convicted of lewd acts with a child under California Penal Code 288 (otherwise known as “child molestation”), he not only faces imprisonment and substantial fines, but will be required to provide a DNA sample and register as a sex offender for life.

Yep, that’s right. Eric Williamson was convicted of violating Virginia’s indecent exposure law. This case received national attention because of the fact that Williamson was in his own home at the time of the offense.

Police arrested Williamson after a mother and her 7-year-old son claimed that as they walked by Williamson’s home, he made a point of making his “naked self” visible to them.

Under California’s “indecent exposure” law, Penal Code 314 PC, unless Williamson purposely “flashed” himself to the mother and son and drew attention to his genitals, he could not have been convicted of indecent exposure. This is because California’s “indecent exposure” law under Penal Code 314 PC requires

1. that you intentionally expose yourself or your “private parts”,


2. in a public area or area where people were present and likely to be offended, and


3. you acted in a lewd manner while drawing attention to your genitals.

Continue reading "Man Convicted for Indecent Exposure...In His Own Home" »

Recent reports indicate that thousands of convicted arsonists may have been falsely accused and wrongfully convicted. This is due to the fact that arson investigators have relied on a basic set of assumptions about how fires burn…assumptions which really amount to little more than “old wives tales”.

California’s arson laws (Penal Codes 451 and 452 PC) prohibit willfully, maliciously, or even recklessly setting fire to another’s property or land. These laws even prohibit willfully setting fire to your own property if (1) you did so with a fraudulent intent, or (2) other property or persons were injured as a result.

California’s arson laws themselves under these Penal Code sections are fine, that’s not the problem. It’s how these arson cases…and those around the country…are investigated that is the issue.

Continue reading "Arson Investigation - Hardly a Science" »

Sex offenses are, perhaps, the most socially stigmatized crimes. Society often shuns, ignores, and even abuses its sex offenders. The California Megan’s Law website is largely to blame for this behavior.

Depending on the particular sex crime for which an individual was convicted, the Megan’s Law website may publish his/her name, photo, the convicted charge(s), and other identifying information (including a complete home address).

But all hope is not lost. There are ways to have your personal information removed or excluded from California’s Megan’s Law website. There are a handful of sex offenses that may entitle you to this relief.

If the state believes that you are not a “predator”…and, therefore, not a danger to society…it will allow you to remove or exclude your information from the Megan’s law list. Once received (and approved), your information may be removed from the Megan’s Law website in thirty days…giving you a new lease on your privacy and, more importantly, your safety.

Decoy officers are frequently used to catch…or entrap…so-called on-line child “predators”. Cops, relying on the anonymity of the Internet, pose as young children (usually 13 years old) in an effort to arrest unsuspecting individuals for a variety of California sex crimes.

One crime in particular is Penal Code 288.2 PC “sending harmful matter to a minor with the intent of seducing that minor”. Penal Code 288.2 PC “sending harmful matter to a minor with the intent of seducing that minor” prohibits sending explicit or obscene matter to a minor with the intent of sexually arousing yourself or the minor and with the intent of engaging in sexual contact with the minor.

Officers will ask for nude photos of the people they are communicating with, engage in explicit e-mails, exchange erotic text messages, and/or have “phone sex” with people who otherwise may not even have engaged in such behavior.

If you are accused of sending harmful matter to a minor under Penal Code 288.2 PC, be sure to discuss a possible entrapment defense with your California sex crimes defense attorney.

Last week, police arrested Devar L. Hurd for cyberstalking the mother of R&B singer Ashanti Douglas. Prosecutors report that Hurd sent Ms. Douglas over 30 explicit text messages. Some of the messages qualified as “sext” messages, including several photos of his genitals and messages about performing graphic sexual acts.

California’s cyberstalking laws are codified in Penal Code 646.9 PC. Simply put, Penal Code 646.9 PC cyberstalking prohibits using any “electronic communication device” (including a cell phone) to threaten or harass another person with the intention of placing that person in fear for his/her safety or for the safety of his/her family.

While cyberstalking may seem less harmful or intrusive than “traditional” stalking, the offenses are prosecuted and punished in much the same way. In fact, cyberstalking can actually be just as dangerous as traditional stalking, due in large part to the fact that blog postings, chat room conversations, and even e-mails can be sent anonymously. Because of this fact, law enforcement agencies have formed specialized units to aggressively investigate cyberstalking claims.

While celebrity stalking seems all the rage, it actually only comprises a small fraction of all California stalking charges. In fact, most California stalking charges involve domestic violence…that is, instances of stalking that involve intimate partners. “Intimate partners” include those who are or were:

1. Married


2. Dating


3. Living together

Nonetheless, celebrity stalking is what grabs our attention...and is actually what drove the California Legislature to pass California’s anti-stalking laws in 1990. These laws were based on two very high-profile celebrity stalking cases involving actresses Theresa Saldana and Rebecca Schaeffer.

Continue reading "Celebrity Stalking" »

Many people don’t realize that California spousal rape is a crime. This misconception may be due to the fact that it didn’t used to be. In fact, California Penal Code 262 spousal rape is a fairly recent offense…it didn’t even become a law until 1979.

Throughout history, wives were looked upon as “property” owned by their husbands. As property, a wife didn’t have the “right” to refuse sex with her husband.

However, in the 1970s, lobbyists in the anti-rape movement argued that spouses shouldn’t be exempt from California rape laws. They believed…and convinced the California Legislature…that married women deserved the same protection from nonconsensual sex as unmarried women.

And even though California Penal Code 262 spousal rape is a separate offense from “traditional” rape, it is every bit as serious. It even carries the same maximum eight-year California State Prison sentence and a lifetime requirement to register as a sex offender. Make no mistake about it…California marital rape is, in fact, a crime and will be aggressively prosecuted.

The term “date rape” conjures up different ideas for different people. Many think that it is a less serious offense than a “traditional” rape charge. Many think it necessarily involves one person “drugging” another with popular “date rape drugs” such as gamma hydroxybutyric acid (“GHB”) rohypnol (“roofies”), or ketamine (“special K”). Still others think it is an offense limited to young adults, primarily college students.

The fact, however, is that date rape is rape – period. California Penal Code 261 rape includes “date rape”. For prosecution purposes, there is no difference between the two offenses.

“Date rape” typically describes nonconsensual sex that takes place between (1) people who know each other, or (2) people who are or were dating. It is not a crime in-and-of itself, but is simply a social term that is used to describe a California rape charge when the accused and alleged victim fall into one of these two categories.

Continue reading "Common Misconceptions about California Date Rape" »

After decades of living on the run, director Roman Polanski began house arrest last Friday. This sentence stems from his 1977 conviction where he plead guilty to California statutory rape, Penal Code 261.5 PC. He is currently serving his sentence in Switzerland, where he must remain in his chalet at all times and is monitored via his electronic anklet. Polanski will remain there until Switzerland decides how to respond to a U.S. extradition request.

Before Polanski fled the country in 1978, he faced a 90-day county jail sentence for his statutory rape charge (also commonly referred to as unlawful sex with a minor). In today’s times, a Penal Code 261.5 California statutory rape charge…under the same or similar circumstances as Polanski’s…would likely result in a one-year sentence.

Continue reading "Roman Polanski on House Arrest for His 1977 California Statutory Rape Charges" »

Although Penal Code 261 PC “rape” is a crime in-and-of itself, there are a variety of sex crimes that are subject to California’s rape laws. Offenses such as spousal rape, date rape, statutory rape, and even oral copulation by force are considered types of rape…and all except statutory rape (that is, unlawful sex with a minor) may result in a lifetime duty to register as a sex offender pursuant to Penal Code 290 PC.

California Penal Code 261 “rape” is defined as nonconsensual sexual intercourse accomplished through means of force, fear, or fraud. It is the “nonconsensual” thread that ties all of these California rape offenses together.

With respect to rape, date rape, spousal rape, and oral copulation by force…if the alleged victim consents to the sexual activity, the California rape charges will have to be dismissed. Statutory rape is a bit different. This rape offense punishes anyone who engages in sexual intercourse with a minor (that is, a person under 18). California law holds that a minor is legally incapable of giving consent, which is why statutory rape is always considered nonconsensual…even if the alleged victim willingly and freely participates in the act.

The stretch of Interstate Highway 15 from Las Vegas to Ontario is a fertile ground for police to issue speeding tickets, DUI arrests and other driving-related citations.

Barstow CA DUI attorney Robert Little says that many of the DUI arrests result in prosecution at the Victorville, Barstow and Fontana courthouses. "Most are Southern Californians heading to Vegas and starting the party early. Or people coming home from Vegas too soon after the party."

Aside from the drunk drivers, this stretch of Highway 15 is dangerous for other reasons. Long straight-aways entice drivers to speed, sometimes in excess of 100 MPH. Many parts of the highway are poorly lit at night, and prone to weather conditions throughout the year. Road construction and a congestion of big rigs also add to the situation.

Little says the CHP and local police are stepping up patrol and cracking down on speeding and DUI. He advises drivers to and from Vegas to stay sober and drive at a reasonable speed.

The California prison population will experience a 27% decrease over the next two years, or at least that’s the plan. A panel of federal judges recently ordered the state of California to reduce its prison population of 150,000 down to about 110,000, citing overcrowding in prisons as resulting in inadequate health care for inmates. California has a period of 45 days to devise a plan for reducing the prisoner population.

According to The New York Timess, “in these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control.” In response, The Los Angeles Times reports that “the governor and most legislative leaders back a plan that would reduce prison populations by as many as 37,000 over the next two years using a combination of early releases, changes in parole policies and shifting some prisoners to county jails.” It has also been recommended that the number of incarcerated, nonviolent offenders should be decreased, inciting anger amongst and objection from law enforcement and victims’ rights groups.

Previous plans to reduce the prison population in California seemed to be more concerned over helping reduce the state budget and less concerned with the well-being of prisoners. Critics of reduction for any sort of reason cite public safety as being compromised if prisoners, even if they are nonviolent offenders, are released back into the general population. According to the San Francisco Chronicle, the judges ordering the reduction believe that “by changing parole practices and releasing some low-risk inmates to local custody, treatment programs or electronic monitoring, the prison population can be reduced without a meaningful adverse impact on public safety.”

Continue reading "Judges Order CA to Reduce Prison Population" »

According to The Washington Post, Michael Jackson was administered a deadly dosage of propofol, an anesthetic drug that a personal physician was administering to the entertainer as a sedative to help him sleep. Though the anesthetic is not recommended for home use, particularly since necessary equipment needed for life-saving measures are not typically found within the confines of a private home, the anesthetic was given to Jackson nevertheless.

Conflicting stories paint the scene of Jackson’s final moments, with authorities questioning the amount of propofol used on the singer, and trying to ascertain whether any criminal activity took place that ultimately lead to Jackson being administered the drugs in the first place. Though numerous prescriptions were found in Jackson’s home, many prescribed by the very personal physician that administered the supposedly lethal injection of propofol, there were no prescription labels associated with the anesthetic, forcing many investigators to ask exactly where Jackson acquired it from and who was responsible for providing it to him.

Continue reading "Jackson Doctor Administered Lethal Dose" »

Three LAPD officers were charged with perjury Tuesday based on a videotape that surfaced contradicting their testimony about seeing a suspect toss a baggie of cocaine. The video also appears to depict the officers agreeing to "doctor" their police report to implicate the suspect wrongly.

No one knows the extent to which police lie in their reports and testimony. But thousands of people get convicted each year based on uncorroborated police testimony. Prosecutors, judges and juries often accept officers' stories uncritically, assuming their word should always be believed over that of criminal suspects.

Had a hidden camera not captured the truth in this case, the defendant likely would have been wrongfully convicted. As it is, the judge dismissed the case after the video surfaced at trial.

Continue reading "LAPD Perjury Case Should Make Us All More Critical of Police Testimony" »

The LAPD is making an increasing number of arrests at Elysian Park for Penal Code 647(a) Lewd Conduct in Public. Most of the arrests involve undercover decoy officers posing as gay men cruising at the park. When an unsuspecting gay visitor cruises or propositions one of the decoys, officers move in and make an arrest.

Penal Code 647(a) makes it a misdemeanor in California to touch your private parts, or those of another person, in public in a situation where you know or should know of the presence of third parties who would be offended by the conduct. The crime is punishable by up to a year of county jail time.

We find that most people arrested for "lewd conduct in public" at Elysian Park (and elsewhere) are innocent and wrongfully accused. Specifically, most gay men who seek to engage in sexual activity in public choose a remote spot. This may be an otherwise empty bathroom or a secluded section of the park. Because there is no one else present who would appear likely to take offense, the conduct, even if sexual in nature, doesn't meet the legal definition of lewd conduct.

Continue reading "Suspects Wrongfully Accused of Lewd Conduct at Elysian Park" »

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.

Continue reading "Ending Penal Code 290 Registration" »

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".

Continue reading "Life in Prison for Forgetfulness?" »

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 self-defense...so 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.

Continue reading "Can a Bully Claim Self-Defense?" »

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.

Continue reading "Are You a Cop?" »

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.

Continue reading "Penal Code 1000 and State Licensing Agencies" »

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.

Continue reading "Proposition 36 & DUI Cases: Casting Too Narrow a Net" »

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.

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.

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.

Continue reading "Internet Sting Operations Target Child Pornography" »

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.

Continue reading "California Embezzlement as an Aggravated Form of Theft" »

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.

Continue reading "Blackmail as a Crime Under California Extortion Law" »

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.

Continue reading "Recanting Victims Don't Stop Domestic Violence Prosecutions" »

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.

Continue reading "Welfare Fraud - How it Works" »

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.

Continue reading "California Burglary Law and After-Acquired Intent" »

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.

Continue reading "When Does a Spanking Become a Crime?" »

Police informants in California provide the authorities with information that leads to search warrants, wiretaps, surveillance and the solving of crimes. The types of informants can range from random citizens who are aware of criminal activity...to agents of the police who infiltrate criminal organizations and report on their activities.

No doubt informants are a very useful and effective law enforcement tool. But when their purported information leads to search warrants and wiretaps, the privacy of the suspects gets invaded. To insure that this invasion of privacy is warranted, the law requires that standards of reliability be observed.

For example, the judge issuing the search warrant can question the informant...either through live testimony or written affidavits. Specifically, the judge looks to see whether (1) the informer has a history of providing tips that proved reliable, or (2) there is independent corroboration of the informer's story.

Continue reading "Informants Must Pass Reliability Tests" »

When police suspect that evidence of a crime may be found at a certain location, they can ask a judge to issue a California search warrant. If issued, the search warrant allows the cops to search the designated locations and seize any relevant evidence that they find.

But even when a search takes place pursuant to a warrant, that doesn't necessarily mean it will hold up in court. A good criminal defense lawyer looks behind the warrant to see if it was properly issued.

Specifically, police must present evidence to the judge to establish "probable case" before a search warrant can be legally issued. Sometimes the police present false or misleading evidence, or they rely on the word of an unreliable informant, or they fail to tell the judge the whole story (intentionally leaving out the parts that don't support their position).

Continue reading "Challenging California Search Warrants" »

The San Bernardino County juvenile court system has relatively few options for where to place minors who are deemed to need detention time. Most are ordered to spend time in the San Bernardino Central Juvenile Hall or the West Valley Juvenile Hall. Serious offenders get transferred to the California Youth Authority (CYA)—essentially a state-run prison for minors.

Los Angeles County, by contrast, operates a series of “camps” for young offenders that function as a middle ground between the halls and CYA. Minors get ordered to camp for 3 months to a year. Counseling, schooling, drug rehab and even career-training are provided. The purpose of the camps is entirely rehabilitative…to take the minor away from problems in the home and on the street, and try to instill in him or her purpose and responsibility.

Continue reading "San Bernardino Lacks a Camp System for Juvenile Offenders" »

When people plead guilty to a California DUI charge, they usually get placed on probation. The court imposes certain “terms and conditions of probation.” Violating these terms and conditions may result in a bench warrant for one’s arrest, a probation violation, and possible jail time.

The terms of probation consist of affirmative duties and prohibitions. Affirmative duties include, for example, enrolling in and completing DUI school, and completing a MADD victim impact class. Prohibitions include refraining from breaking the law, from driving with any measurable amount of alcohol in one’s system, and from driving without proper liability insurance.

Most bench warrants get issued for people failing to complete the affirmative requirements. For example, one must enroll in the DUI school within 21 days of sentencing. Most judges require you to return to court with a “proof of enrollment” within 30 days of sentencing, and a “proof of completion” within 6 months.

Continue reading "DUI Probation Violations" »

A defendant in California may file a Serna motion when the state fails to execute its prosecution in a speedy manner. The defendant must show that he's been prejudiced (harmed) by the delay. For example, alibi witnesses and other defense evidence may no longer be available. Prejudice is presumed when the prosecution delays more than one year.

There are a couple ways the prosecution can delay itself. The first is when the D.A. waits awhile to file charges, even though the D.A. has the evidence it needs. If the D.A. sits on the case long enough before filing, this can lead to an effective Serna issue for the defense.

A second type of delay is when the police fail to execute a California arrest warrant in a timely manner. Once the D.A. files charges, usually an arrest warrant is issued. The defendant typically learns of the charges when he gets arrested. But if the cops fail to arrest him, the defendant may be oblivious to the charges and thus not take steps to preserve useful evidence.

The remedy when a defendant prevails on a Serna motion is dismissal of the case.

Police throughout California continue to arrest unsuspecting gay men as part of lewd conduct sting operations. In spite of protests and recent court victories, cops have shown few signs of slowing down.

Penal Code 647(a) “Lewd Conduct in Public” makes it illegal to engage in public sexual activity when you know or should know of the presence of other people who would take offense. The last part of that definition is critical. California law does not make it inherently illegal to do sexual acts in public. It only becomes a crime if third parties are there whom you have reason to believe would be offended.

In the sting operations, undercover “decoy” cops pretend to be gay men “cruising” in bathrooms, parks and other public places. They try to coax unsuspecting gay men into masturbating, dropping their pants, or doing or proposing some sexual act. Then they arrest the “suspects” for violating Penal Code 647(a).

Continue reading "Police Continue to Entrap Gay Men for Lewd Conduct" »

When prosecutors file criminal charges against someone not already in custody, they take the case to a judge to issue a California arrest warrant. This authorizes the police to apprehend the defendant and detain him/her until arraignment or, if bail is authorized, until bail is posted.

If you are aware of having a warrant for your arrest, usually the worst thing you can do is hide out and become a fugitive. In all likelihood, the police will find you and arrest you eventually. If you go “on the lam” for some period of time, this can make things worse once you do ultimately get arrested.

A California criminal defense lawyer can often escort you directly to court and ask that you be arraigned immediately. This means you enter a plea (usually “not guilty”), a further court date is set, and the judge decides what to do about bail.

Continue reading "What To Do if You Have an Arrest Warrant in California" »

The California DMV reserves the authority to revoke the driving privileges of anyone determined to be unable to drive safely. One such category of drivers is people with medical conditions that impair their driving skills…such as epilepsy, macular degeneration and some forms of diabetes.

Before a person can receive a driver’s license suspension for a medical condition, the DMV must first conduct a hearing. This is referred to as a “reexamination” or “lack of skills” hearing. A DMV hearing officer interviews the driver, reviews all the medical evidence, and sometimes conducts written and driving tests.

Revoking driver’s licenses for people with medical conditions involves balancing two competing policy objectives. On one hand, our society is committed to equal access and equal opportunity for people with disabilities. And driving privileges can be vital to one’s ability to earn a living, run errands, care for children, and participate fully in our community and economy. A person with disability already suffers adversity in life. Not being able to drive only compounds that adversity.

Continue reading "When Should Medical Conditions Cost People Their Drivers Licenses?" »

Under Penal Code 118, a person commits perjury in California when he willfully gives false testimony while under oath. This usually happens at court proceedings or depositions, but it can also occur in affidavits or any document that’s signed under oath.

To count as perjury, the false statement must be “willful.” This means, in effect, that the perjurer knew the statement to be false but intended it to be taken as true. There must have been an intent to deceive.

A person who mistakenly makes a false statement is not guilty of perjury. For example, suppose Jane testifies as an alibi witness in Paul’s murder trial. She testifies that she saw Paul in Berkeley at the time of the murder, when the murder took place in San Diego. It turns out Jane is mistaken. Surveillance tapes, other witnesses and a confession all put Paul at the scene of the murder.

Continue reading "“Mistake” as a Defense to Perjury" »

The term “crimes involving moral turpitude” refers to a category of crimes that are said to involve dishonesty, deceit, or a “readiness to do evil.” The list of such crimes ranges from murder to perjury to theft offenses.

Whether a crime is categorized as involving moral turpitude has significance primarily in two areas: court proceedings and immigration. As far as court, when a witness testifies, and that witness has prior criminal convictions, the judge must decide whether to allow the opposing party to impeach the witness with those convictions. Generally speaking, this prior misconduct is admissible only if it’s deemed to involve moral turpitude.

As far as immigration, there are several categories of crimes conviction of which triggers “immigration consequences”: deportation, exclusion from admission to the United States, and denial of the chance to naturalize. “Crimes involving moral turpitude” is one category of offenses triggering these consequences.

Of course no one wants to get convicted of any criminal charge. But for many people, conviction for a crime of moral turpitude can be especially devastating.

Hundreds of thousands of non-citizens face immigration consequences for prior criminal convictions. These consequences affect legal and illegal immigrants alike, and can include deportation, denial of re-entry and denial of the chance for naturalization to the United States.

An area of criminal law exists that involves efforts to go back and modify, and sometimes vacate, these convictions. Lawyers generally call this post-conviction relief. Sometimes this involves seeking retroactively to reduce or change sentencing. An aggravated felony, for example, triggers immigration consequences when the sentence is for 365 days or longer. Modifying a sentence to, say, 364 days can sometimes stop a person's deportation.

But the most common form of post-conviction relief is a motion to vacate a prior conviction. And the most common basis for the motion is failure to advise the defendant of immigration consequences. The attorney will try to convince the court that at the time the client accepted a plea bargain and pled guilty or no contest, he was not apprised of the immigration ramifications. Had he been, he would not have entered the deal.

Continue reading "Post-Conviction Relief for Non-Citizens" »

The intersection of criminal and immigration law is extremely complex and fraught with peril for attorneys and clients. A non-citizen facing criminal charges must worry not just about jail time and a criminal record, but also possibly losing his immigration status and being deported. Many criminal defense attorneys advise non-citizen clients to accept certain plea bargains, not realizing the long-term immigration consequences.

Understanding this area of the law starts with distinguishing two classes of immigrants: legal versus undocumented immigrants. The former group includes visa and green card holders given permission to stay in the United States. For legal immigrants, certain criminal convictions trigger deportation. Among these are aggravated felonies, domestic violence, drug crimes, firearm offenses and crimes of moral turpitude.

Undocumented immigrants (or illegal aliens) are foreigners living in the United States without permission. For this group, certain criminal convictions trigger inadmissibility, or denial of the opportunity to gain lawful immigration status. Among these are drug or prostitution crimes, crimes of moral turpitude, and multiple convictions. These crimes will also cause illegal aliens to be removed from the country and denied permission to re-enter.

Continue reading "Criminal Defense of Non-Citizens is Complex and Fraught with Peril" »

The traditional common law definition of burglary is breaking and entering a structure with the intent of stealing goods or committing other crimes inside. Under Penal Code 459, California burglary law breaks with the common law by nixing the "breaking and entering" requirement. A person in this state still commits burglary when, for example, he walks into a house through a wide open door intending to commit a theft once inside.

But California law still retains the "breaking and entering" requirement with regard to one particular form of the crime: auto burglary. A person cannot be convicted of automobile burglary in this state unless it's proven that the vehicle was locked and secured and the burglar used force to gain entry.

By way of example, imagine that Bill enters a parked Camry believing there may be valuables in the car. But to his dismay, he finds nothing of value in the car and so he steals nothing. If the car had been locked, he committed an auto burglary. If the car had been unlocked, there's no auto burglary (though he still might be liable for a California criminal trespass charge). If Bill had stolen something, he'd also be liable for a theft offense.

The breaking and entering requirement is based on the legislative intent to make it more serious to break into a car than merely to steal something from it.

California Penal Code 496 defines Receiving Stolen Property as purchasing or otherwise taking possession of items you know to be stolen. As a general rule, this means someone else actually stole the goods and you subsequently received them. The original thief received stolen goods too when he stole them but he can't be charged with both the original theft and receiving stolen property. Otherwise Penal Code 496 could tag along with practically any theft charge.

However, California law allows one exception. This happens when a person steals an automobile and is later caught driving it. Under the case of People v Garza (35 Cal. 4th 866), this person can be charged with both Receiving Stolen Property and California automobile theft under Vehicle Code 10851.

The key is that for the state to add the PC 496 charge, it must be "post-theft driving." This means the person wasn't simply driving the car away from the place it was stolen (otherwise this would be part of the theft itself). But the courts have not clarified how much time must pass for the post-theft exception to apply. If the thief is caught driving the car several days later, it clearly would. But if just a few minutes, or an hour, or a few hours have passed, the law is not so clear.

The two most common California theft crimes are Penal Code 487 Grand Theft and Penal Code 488 Petty Theft. Both crimes are identical except for one distinction: the value of the property stolen. Theft of property worth more than $400 constitutes grand theft and property worth $400 or less is considered petty theft.

A grand theft charge is considerably more serious than petty theft. Penal Code 488 is a pure misdemeanor and carries a maximum sentence of 6 months county jail. Penal Code 487 on the other hand can be filed as a misdemeanor or felony. As a felony, California grand theft carries up to 3 years in state prison.

It makes sense that the value of the stolen merchandise should affect the seriousness of the charge; however, the $400 threshold is rather arbitrary. A mother who steals $405 worth of medicine to treat her ill children faces a much more serious charge than someone who, for example, steals $390 worth of video games just for fun.

Continue reading "Grand Theft vs. Petty Theft in California" »

A Santa Ana jury hung yesterday in the murder trial of Sandra Jessee, accused of hiring someone to stab her husband who was ill with colon cancer. The prosecution argued that Jessee was frustrated with the victim's mounting medical bills, and that she gained by inheriting his 401k and life insurance payout.

The jury hung 11-to-1 in favor of the prosecution. Some of the majority jurors accused the dissenting juror of failing to deliberate and analyze the case properly. The dissenter apparently had trouble believing a key prosecution witness, a co-conspirator who had been offered a deal in exchange for his testimony.

Orange County criminal attorney John Murray believes conviction is likely in the retrial. "If they got 11 jurors this time, odds are they'll get 12 next time. But it goes to show that anything's possible in a jury trial, especially when the prosecution has to turn a witness to make its case." Deputy OC District Attorney Mike Murray says he plans to re-file murder charges and retry the case.

Jaime Parades pleaded not guilty today to murder and attempted murder in connection with a July 1st shooting rampage at a Simi Valley Dental Clinic. In the incident, Parades allegedly stormed the clinic, shooting his wife to death and critically injuring three others. He is currently being held without Ventura County bail.

The rampage shocked the relatively peaceful Simi Valley community. According to Ventura criminal defense lawyer Darrel York, public shooting rampages are becoming more common. York attributes this to many factors, including the prevalence of guns on the street, a declining economy, the isolation of people in our metropolitan areas, and America's culture of violence.

Parades faces in excess of 100 years to life in California State Prison. Although the case may go to trial, there's little doubt about his conviction. The prosecution has multiple eyewitnesses and a video taped confession. The Ventura County District Attorney has not yet indicated whether it will seek capital punishment.

A California driver who acquires too many points on his or her driving record can be declared a Negligent Operator and see their driver’s license suspended. This happens if you receive 4 points in a 12 month period, 6 points in a 24 month period, or 8 points in a 36 month period. Points are imposed for accidents, moving violations or criminal traffic offenses such as DUI.

Unfortunately many people facing a negligent operator suspension simply acquiesce. They don't realize that the suspension decision can be challenged, often successfully. Every California driver’s licensee has a right to a DMV hearing before this or most other license suspensions can be imposed.

The first step is demanding a hearing. This must be done within 10 days of receiving notice from the DMV. A California DMV hearing attorney can represent you at the hearing. You or your attorney can challenge the DMV's evidence and present "mitigating circumstances" (such as evidence that you were not totally at fault for an accident on your driving record). If the DMV ultimately finds in your favor, it may restrict rather than suspend your license, or let you off with just a warning.

Although no charges have been filed yet, the doctors overseeing Michael Jackson could face prosecution--possibly even for murder--if it's determined that they knowingly and improperly administered to him a dangerous combination of drugs.

Dr. Alex Farshchian, a Miami Beach doctor who was treating Michael Jackson at the Neverland Ranch, is currently the focus of an LAPD inquiry. It's suspected that Farshchian was providing Demerol and Buprinex to the singer, both pain killers to which Jackson apparently was addicted.

A person can be charged with Second Degree Murder in California if he intentionally commits an act dangerous to human life, and deliberately acts with a "conscious disregard" for human life. Under Penal Code 187 (California murder law), there need not be any specific intent to kill the victim. Examples include a repeat drunk driver who causes an accident killing a third party, or a drug dealer whose buyer dies from an overdose.

If the Jackson doctors knew that the combination of drugs supplied to the singer was potentially fatal, and outside the bounds of acceptable medical practice, Los Angeles prosecutors could charge them with murder. A conviction carries a life sentence, with the possibility of parole.

Under new Obama Administration policies, Federal authorities have stopped making raids on legitimate medical marijuana clinics. But officials in Los Angeles and other municipalities are picking up the slack. The city has enacted a 2-year moratorium on new dispensaries, and is using zoning law and local ordinances to frustrate the activities of existing ones.

By way of Proposition 215 and Senate Bill 420, California marijuana law allows people to possess, use and cultivate a limited amount of pot for qualified medical purposes. The medical marijuana user must get approval from a primary care physician and usually must obtain a county-issued marijuana health card.

In spite of the clear statement of California voters to allow legitimate medical marijuana in the state, dissenting local officials continue to use every resource in their arsenal to impinge on patients' rights and shut down dispensaries. On the contrary, cities should effectuate the will of the people and facilitate safe access to medical pot for qualified users.

Most people think of forgery as signing someone else’s name to a document without the person’s permission. But Penal Code 470 – California’s forgery law actually reads much broader than that.

In California, a person commits forgery when he knowingly alters, creates, or uses a written document, intending to commit a fraud. Said another way, forgery is creating or making use of a new document for the forger’s personal benefit and gain.

For example, a person who knowingly deposits a bad check in his bank account commits a forgery, even if he was not the one who signed it or created the false document. Likewise, a con artist who deceives a person into signing a fraudulent paper commits a forgery. As such, California’s forgery law is a sort of “catch all” that criminalizes a wide range of deceptive and fraudulent acts.

In 2000, California overhauled its drug laws by enacting Proposition 36. The “Substance Abuse and Crime Prevention Act” allows most offenders convicted of casual drug use or possession to undergo treatment in lieu of any jail time. The policy goals of the new law were (1) to reduce drug abuse by treating addicts, and (2) to save scarce jail and prison space for more dangerous criminals.

Yet people convicted of selling narcotics and possession of narcotics for sale are ineligible to participate in Proposition 36. While it makes sense that major drug dealers should not escape punishment by feigning the need for treatment, the blanket exclusion of sales-based offenders from the program does not seem accurate.

Many offenders arrested for selling (or possessing for sale) a small quantity of drugs really are casual users selling petty amounts to fund their own drug addiction. Most of them are not dangerous and many of them could benefit much more from treatment than incarceration. Proposition 36 could be more effective if it gave judges discretion to examine the facts of each case and offer the program where appropriate, even for many defendants accused of selling narcotics.

California is thought to offer one of the more lenient sentencing schemes in the nation for casual drug users. Offenders charged with first-offense drug possession almost always can escape custody time (and get the charges dismissed) through Penal Code 1000 drug diversion or Proposition 36. Both of these programs offer treatment as an alternative to jail and a criminal record.

But one California drug law stands out as unusually harsh: Health & Safety Code 11550: Being Under the Influence of a Controlled Substance. This law mandates a minimum 90 days of jail for anyone convicted. The law applies to anyone found to be intoxicated on either an illicit narcotic, or even a prescription drug for which the user does not have a lawfully issued prescription.

First time California drug crime offenders may opt for diversion or Proposition 36. Still, a “90 day minimum” is almost unheard of for any first offense under California law. Even a person convicted of selling cocaine can get probation with no mandatory jail time. So it’s unclear why the law punishes casual users so severely, more so in this case than even drug dealers.

California law draws a sharp distinction between marijuana for personal use versus cultivating marijuana or selling marijuana. The former triggers only a small fine and no jail time. The latter can land a person in state prison for years.

Under health & safety code 11357, a person possessing less than an ounce of pot can be punished by no more than a $100 fine. But if he tries to sell the weed or is found to possess the marijuana for sale, he can be charged with a felony and sent to prison for up to 3 years.

The policy aims of the legislature are clear: give casual users no more than a slap on the wrist, but go after growers and sellers with a fierce sword. In fact, the penalties for selling or possessing for sale marijuana nearly match those pertaining to illicit drugs such as cocaine or heroin.

Not only are these laws inconsistent, but police, prosecutors and courts spend hundreds of millions of dollars each year enforcing marijuana "crimes." This occurs in spite of ample evidence that marijuana is a benign substance that actually relieves stress and provides medical benefits.

California Penal Code 148 (a)(1) defines the offense commonly known as "resisting arrest." This crime most frequently gets charged in a situation where a police officer goes to arrest someone, and the person struggles physically to avoid being taken into custody. Police then have to apply greater force to subdue the suspect.

But California Penal Code 148 reads broader than just the traditional notion of "resisting arrest." It applies to situations where a suspect is "resisting, delaying or otherwise obstructing" a peace officer or emergency medical technician in performing his/her duties. Basically this means anything that thwarts a peace officer in conducting an investigation and facilitating arrest qualifies as “resisting arrest.” Other examples would include providing a false identity to an arresting officer or filing a false police report.

Penal Code 148 is a California misdemeanor that could land a person in jail for up to one year. Many of these cases involve a police officer's word against a suspect's word. In that situation, defense attorneys will want to conduct a "Pitchess Motion" to see the entire personnel and complaint history of the officer. It may turn out the cop has been accused in the past of excessive force and making false accusations against suspects. If so, the defense can use this to impeach the officer's credibility, and often get the resisting arrest case reduced or dismissed.

Doctors pronounced pop star Michael Jackson dead Thursday, just four years after a Santa Maria jury acquitted him of child molestation charges.

In that case, the prosecution charged Jackson with seven counts of Penal Code 288 -- Lewd Acts with a Child Under 14. The judge also allowed prosecutors to bring in evidence of other uncharged allegations of Jackson's inappropriate sexual activity with children.

Early on in the case, legal experts felt that the evidence against Jackson was compelling, and he faced very likely conviction. But after one of the most celebrated and closely-watched criminal trials, a jury acquitted Jackson of all charges on June 13, 2005--almost exactly four years before his death.

California has two primary criminal laws that punish people for driving a motor vehicle when they are not properly licensed. California Vehicle Code 12500 makes it a misdemeanor to drive without a valid driver’s license. California Vehicle Code 14601 makes it a misdemeanor to drive on a suspended license.

California Vehicle Code 12500 is a relatively straightforward statute. It makes it a crime to drive without a validly issued license. This most often applies to people who never obtained a drivers license in the first place, or who failed to renew their license upon expiration, or people who moved to California and failed to switch from a license issued in the previous state to a California drivers license.

Vehicle Code 14601, on the other hand, applies to someone who had a valid driver’s license but whose license got suspended. The reasons for the suspension could include a California DUI conviction, failure to pay traffic fines and DMV fees, or becoming a "negligent operator" accumulating too many points on one's driving record.

Vehicle Code 14601 cases can be more difficult for the prosecutor to prove. To be guilty of the crime, the driver must have knowledge that his license was suspended at the time of driving. Unless a judge, police officer or DMV official specifically advised him/her of the suspension, this "knowledge" element can be difficult to prove (beyond a reasonable doubt, anyhow). But though VC 14601 is a tougher crime for the state to substantiate, the penalties for California Vehicle Code 14601 are substantially greater.

In November 2008, the Press-Enterprise reported in a story on the developments in a large-scale federal cocaine trafficking probe in San Bernardino County. A criminal complaint in San Bernardino Superior Court names 19 defendants and includes felony counts for a range of offenses associated with a criminal drug case.

California drug trafficking cases often involve multiple charges originating from different sections of the federal Controlled Substances Act. In the San Bernardino drug probe, some of the charges mentioned in the Press-Enterprise story are conspiracy, cocaine transportation, and possessing cocaine for sale.

Any one of these charges is quite serious for the defendants involved. Depending on the quantities of cocaine involved in the case, first-time offenders listed as defendants in this case and charged with possessing cocaine for sale could receive up to 10 years in prison as a minimum sentence. Prior felony drug convictions increase jail time and other penalties by a considerable amount.

Continue reading "San Bernardino Cocaine Trafficking Probe" »

According to a NPR report, a recent audit of the Los Angeles Police Department crime labs found that the department had missed legal deadlines to test DNA samples that were collected as evidence in over 200 rape cases. Police Chief Bill Bratton pointed to a lack of funding and manpower in the DNA lab as an explanation for the missed deadlines.

Bratton cited a $500,000 shortfall in federal funding and delays in hiring 16 new lab technicians which strained the crime lab’s ability to process DNA evidence. In the NPR interview, Bratton stated that processing DNA evidence is “extraordinarily labor-intensive…not CSI,” and that “there are just not enough people in the crime lab to do the work.”

That situation is not likely to improve soon. Beginning this year, 2009, the state of California will be required to collect DNA from all adults arrested—not charged—for a felony offense. This is an expansion of existing California law, which mandated the collection of DNA samples from adults arrested—not charged—for California felony sex offenses, murder or manslaughter.

Continue reading "Los Angeles DNA Evidence Backlog: The Perfect Storm" »

Miguel Ramos, a 28-year-old Chino man, has pleaded not guilty by reason of insanity to charges that he murdered his cousin after finding out that his wife and cousin had an affair. According to this news report in the Inland Valley Daily Bulletin, Ramos shot and killed 25-year-old Valentin Barria at a house party in front of Barria’s wife and the couple’s 5-year-old son.

Ramos pleaded both not guilty and not guilty by reason of insanity to a murder charge. Ramos will be tried on the murder charge first. If convicted, then the trial will move to the next phase where the same jurors will determine whether Ramos was “legally sane” at the time of the shooting.

“Legal insanity” is very much different from the psychological definition of mental illness. For a person to be punished for his or her crime, the prosecutor must establish during the trial that he or she possessed the mental capacity to justify intent. The prosecutor must prove that the defendant set out to commit a crime and then went through with it. In other words, without the “intent” to commit a crime, a crime is not considered a crime at all. Although prison is ruled out, the defendant who is determined to be “legally insane” at the time of committing the crime, will serve time in a mental institution until physicians declare that he or she is capable of returning to society.

If you or someone you love has been accused of murder, please contact a Southern California criminal defense attorney for a free consultation and case evaluation.

Police in Boyle Heights arrested a parolee-at-large after a chase, which ended in a crash. According to an article in the Pasadena Star News, Lepoldo Monarrez, 28, of Los Angeles was arrested on suspicion of felony evading, resisting arrest and being a parolee-at-large.

The incident reportedly began when an officer pulled over Monarrez’s GMC Denali sport utility vehicle in the 300 block of South Garfield Avenue in Monterey Park. Officials said Monarrez did not have a driver’s license and drove off when the officer went back to his patrol car to look up some information. What followed was a high-speed chase, which ended in Boyle Heights when Monarrez crashed into a parked car. He tried to flee on foot, but was caught by officers.

Criminal felony charges can have serious consequences on a person’s life. It could have a particularly high impact when a person has a prior criminal record and prior “strikes.” According to California’s “three strikes law,” a person faces life in prison for the rest of his life if he commits a “third strike.”

That’s why it’s really important for you to retain the services of an experienced and knowledgeable Southern California Felony Defense attorney, who knows and understands “three strike” cases and consequences. If you or someone you know has been charged with a felony in the state of California, call us for a free consultation. We will conduct a thorough and independent investigation and build a strong defense for the best possible result in your case. Call us today.

State attorneys are celebrating after the Maryland Supreme Court ruled that a detective who told a murder suspect she could “get a lawyer at some point” if she could not afford one now did not misstate her Miranda rights. Just because the detective did not state the Miranda warning verbatim does not mean that he violated the rights of the suspect, according to the Supreme Court. They cited a California ruling that an officer need not “incant” the Miranda warning verbatim.

What does this mean for people who are pulled over and read a non-verbatim version of the Miranda warning? Essentially, if the content of the Miranda rights is intact, the form does not matter in the eyes of the law. But do the Miranda rights really protect you against statements you make to incriminate yourself? Unfortunately, they do not always do so. Even if you confess or incriminate yourself prior to a police officer’s reading your rights, that evidence may be presented at trial if the officer can prove that they would have been able to discover it without your help.

Ultimately, “polite but silent” is a good rule of thumb when you are under police custody. It may make you appear guilty or suspicious, but in order to avoid incriminating yourself, it is best to have an attorney present during all police interrogations. A good criminal defense attorney can make sure you are protected against self-incrimination, and can reassure you during intimidating interrogations.

Under arrest? In need of a competent and caring California criminal defense attorney? Look no further. Neil Shouse & Associates has a track record of strong criminal defense and the resources it takes to win at trial. Do you have a criminal defense case? Call today for a free, confidential consultation and more information on our services.

The romantic epic film “Atonement” is sweeping the box office and the awards ceremonies, recently picking up a Golden Globe Award for Best Drama. What does this have to do with criminal defense? A lot, since the story behind “Atonement” highlights the damning power of words.

The story at the center of “Atonement” deals with a young girl who, misunderstanding what she sees at a family party, accuses a young man of raping a houseguest. Her accusation sets in action a chain of events that leads to the defendant serving time in prison, leaving only to be killed during World War II. The girl’s accusation makes sense at the time and is an accurate statement of her understanding of events. But the defendant’s inferior place in the family and the social stigma of rape force him into jail for a crime he didn’t commit, tearing apart a family and ultimately costing him his life.

All too often, a single accusation, whether out of malice or just misunderstanding, can set a criminal case into motion. Police must have an accusation to work off of, and “he said” versus “she said” can be pitted against one another in criminal court. Because of the many ins and outs of evidence, testimony, hearsay and criminal claims, it’s vital that a defendant who is accusing himself against false claims hire the best possible criminal defense attorney to help stay out of jail and keep his good name unsullied. Often, a good criminal defense lawyer can use legal procedure to his or her advantage, bargain down a plea, or get a case dismissed outright when outlandish and unsubstantiated claims are involved.

The attorneys of Neil Shouse & Associates are committed to each and every client. We offer a compassionate ear, unfailing customer service, and a track record that shows our ability to fight and win criminal defense cases. Have you been falsely accused of a crime? Don’t hesitate – call our offices today to find out how we can help.

News that United Kingdom law enforcement officials are set to begin trying to make rape suspects incriminate themselves via telephone or text message means there’s no time like the present to review pretext calls. This self-incriminatory tactic is often used by California police early on in rape cases, and you need to know how to protect yourself against the dreaded pretext call.

What is a pretext call? It may be from a friend, stranger, child, adult, or old acquaintance. Generally, the person will call and start asking questions about old accusations or events in an attempt to get you to say something self-incriminating. For example, the person might be an old girlfriend who brings up a situation that could be construed as date rape. If you apologize or acknowledge the incident on tape, even if it’s an incident you did not feel guilty of or involved in, the tape could be used as evidence at trial. Pretext calls are an extremely controversial police tactic, but uninformed people are often sitting ducks for this form of self-incrimination.

If you receive a suspicious phone call you believe may be a pretext call, be polite but firm. Refuse to answer questions or engage the caller in a conversation. Hang up as soon as possible and call your criminal defense attorney. The right criminal defense lawyer can help defend you against self-incriminatory statements recorded during pretext phone calls.

The lawyers at Neil Shouse & Associates are experienced in the field of criminal defense. We have what it takes to fight your battle and keep you out of jail. Have you received a pretext phone call? Are you accused of a crime? Don’t act alone. You need an experienced criminal defense lawyer to help protect your rights and freedoms. Act now – call Neil Shouse & Associates today for more information and a free phone consultation.