California Criminal Defense Blog

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

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

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

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

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.

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.

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.

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 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 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" »

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" »

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.

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" »

On Christmas Day 2008, the Los Angeles Times reported in an article on the arrest of Hope Jacoby, a 23-year-old athletic trainer at Tustin High School for suspicion of committing sexual offenses that included illegal sex acts with an underage boy. Orange County Sheriff’s Department spokespersons have revealed that Jacoby is under suspicion for committing oral copulation with a minor and unlawful sex with a minor.

In California, oral copulation with a minor is the act of making contact between the mouth of one person and the anus or genitals of another person where at least one of the persons involved is a minor (under the age of 18). The duration or intensity of that contact is not relevant—even a fleeting touch is sufficient under California law.

Unlawful sex with a minor is a sex act between an adult and a minor where the adult is not the spouse of the minor. Depending on the comparative ages of the persons involved as well as other factors—such as the use of force or drugs—a conviction could result in one year of jail time or up to fours incarceration in the state prison. In addition, unlawful sex with a minor can carry civil penalties of up to $25,000.

Added to these legal punishments are the long lasting social and economic damages that a conviction for a sex crime in California inflicts on the defendant. Even being arrested on the suspicion of having done these acts can hurt a person’s career and reputation—even if no charges are filed.

If your livelihood and reputation are at stake, the guidance of an experienced California sex crimes defense attorney is highly recommended. Contact us for a free case evaluation.

Eduardo Bermudez, a 29-year-old Los Angeles Police Department officer, has been arrested on suspicion of attempted rape, according to this NBC news report. The arrest was made in connection with an LAPD holiday party at a hotel near the Los Angeles International Airport. The alleged sexual assault victim is also an LAPD employee, officials said. The investigation is being handled by LAPD’s Internal Affairs Division investigators.

The consequences of sex crime charges are extremely serious. Especially in cases where the defendant is in a position of responsibility, the individual stands to lose everything. A sex crime conviction will almost always result in jail or prison time, probation and mandatory registration as a sex offender. It could destroy your career. If you are a law enforcement officer convicted of a sex offense, you can forget about ever getting a job in law enforcement again. If you’re a teacher and are convicted of sexual behavior with a student, you will not ever be allowed to work with children. You could lose your career and everything you have been working for your entire life.

Sex crime defendants need a solid criminal defense lawyer on their side because the stakes are simply too high. If you have been charged with a sex crime in Southern California, you need a skilled Southern California Criminal Defense attorney, who has a proven track record of getting sex crime charges reduced, rejected or dismissed. We understand that often times, allegations of sexual assault or sexual conduct may be fabricated. Our attorneys believe in early intervention -- getting to the heart of the case very early in the game so we can stop charges from even being filed against you. If you or someone you love has been charged with a sex crime or is being investigated in connection with a sex crime, please call us today for a free consultation and case evaluation.

A karate instructor in Orange County pleaded guilty to molesting seven boys in his Westminster studio. According to a news report in The Orange County Register, 51-year-old Patrick Shawn Magnan could face up to 110 years to life in state prison. Magnan reportedly molested the seven victims, aged 10 to 14, indulging in lewd acts such as masturbation, groping and kissing.

One of the alleged victims apparently told a counselor about the incidents, the report states. Westminster police officials say victims told them they did not come forward because they were ashamed and also because they were intimidated by the physical strength of their karate teacher. Magnan pleaded guilty to 12 felony counts of lewd acts on a child under 14 and sentencing enhancements for committing lewd acts on multiple children. Magnan apparently has a prior felony conviction for attempted criminal sexual conduct on a child under 13 in Michigan.

When individuals use children as sexual objects, make no mistake, they must be brought to justice. But all too often, people find themselves charged with sex crimes based on false accusations or manipulated accusers. If you believe you have been wrongfully accused of assaulting or sexually abusing a child, you need the best criminal defense attorney you can find.

Consider the serious consequences of these charges. If you are convicted, you will face a lengthy prison sentence. In this case, this karate teacher faces life in prison. There will not only be severe penalties, but you will be required to register as a sex offender. Your name will be on a sex offender database that anyone can look up. Of course, this will seriously jeopardize your future and prevent you from ever owning a house or being employed. Please do not let this happen to you. Call us today to find out how we can help you with your Southern California sex crime case.

A 44-year-old doctor in Rowland Heights has been arrested on suspicion of sexually assaulting his patients during office visits, the San Gabriel Valley Tribune reports. Dr. Wazir Nadir Ali was reportedly booked on five counts of penetration with a foreign object and one count of sexual battery under false pretenses, according to Whittier police reports.

Police arrested the doctor after a 20-year-old woman told officials that he sexually assaulted her under the pretext of physically examining her. A similar allegation came from a 53-year-old woman. Both incidents allegedly occurred during medical appointments in 2005 and 2007 at a Bright Medical Associates facility on Whittier Boulevard in the city of Whittier where Ali had his practice.

This doctor has not yet been found guilty of the allegations. But he resigned from the hospital as soon as the allegations surfaced. According to the report, Ali’s medical license has also been suspended and he runs the risk of losing it permanently. This case is a great example of how your life could change if you face California sex crime allegations. Not only is your reputation tarnished – whether you are convicted or not – you also risk losing your job and your livelihood.

If you are facing sex crime charges in California, your best bet is to retain the services of an experienced California sex crime defense lawyer who will listen to your side of the story and independently investigate your case. Our Southern California Criminal Defense attorneys have extensive experience with sex crime cases and can help you fight the charges. Call us today to schedule your free consultation.

A birthday party clown pleaded guilty to molestation in San Bernardino County, the Daily Breeze reports. David Albert Lemus aka Trim-Trim the Clown, reportedly agreed to the plea deal at the San Bernardino Superior Court in Fontana. He faces up to 12 years in prison. Lemus’ sentencing is scheduled for Oct. 2.

The clown, who is now 51, was arrested in costume in 2005 after two girls – ages 12 and 14 – told police that Lemus molested them during the National Orange Show in San Bernardino. Lemus has pleaded guilty to charges of continuous sexual abuse of a child and oral copulation by threat. Both are felonies.

California child sex abuse cases are among the most serious crimes that can land a defendant in big trouble. If you have been charged with raping or molesting children, you face the possibility of a lengthy prison sentence, stiff penalties and registering for the rest of your life as a sex offender. With such sex offender databases being public record in California, you will have a tough time getting a job or even a place to live.

Don’t let this happen to you. If you have been accused of sex crime, please get in touch with a Southern California sex crime defense attorney to learn about your rights and discuss the best possible course of action. Our attorneys and investigators have decades of experience defending clients against serious charges and a great track record for acquittals. Please call our law offices for a free consultation today.

Durham District Attorney Mike Nifong stated publicly that a small group of lacrosse players from Duke University raped a woman. After putting these young men and the University through a living hell, it was Nifong who was the ultimate wrong doer. He has had his bar license taken from him and he, himself, is facing criminal charges. Don’t fool yourself. The Nifong problem is not isolated to Durham, North Carolina. Quite often, I find reasonable doubt that is clearly obvious in a court file provided by the prosecutor; however, the young and inexperienced prosecutor, fueled by their need for trial experience and/or directed by a supervising district attorney looking to make a name for him or herself pushes the case to trial. Regardless of what the underlying reason is, the issue is people’s lives. Things happen. People make mistakes, whether they are the a private person or public employees like law enforcement detectives, police officers and/or criminalists. D.A.’s should focus on the facts. If there is a questionable issue in a case the case should be either dismissed or reduced to give a wake up call to a person who MAY have made a mistake. What shouldn’t happen is a case being pushed to trial when the facts are questionable or reasonable doubt exists from the facts. Either way, if you are the unlikely sole looking at criminal charges, you better be ready to fight like hell.

Oh, the perils of following one’s knee-jerk reaction when faced with criminal prosecution for an alleged wrongdoing. Three-term United States Senator, Larry Craig from Idaho, acted entirely foolish by pleading guilty to “lewd conduct ” after he was allegedly observed by an officer foot-tapping and waiving his hand under the adjacent stall at a bathroom at the Minneapolis airport last June.

Apparently, this gesture is code for “let’s engage in hanky-panky right here in the john.” A critical piece of this strange puzzle is that the recipient of the “signals” was a sting officer, who was being paid to sit in the bathroom all day, on the prowl for perps. The scenario was quite different from being “caught in the act,” as it were.

The Idaho statute is very similar to California Penal Code 647a . This statute makes it a misdemeanor offense to touch one’s private parts in public for the purposes of sexual gratification when others may be present who may be offended by it. Police in Los Angeles, Orange County and San Diego are notorious for setting up similar bathroom operations to entrap people into engaging in Lewd Conduct or Lewd Acts in Public .

Continue reading "Senator Craig is Guilty, But Not of a Crime" »

Barely a week after OJ Simpson’s much-publicized arrest in Las Vegas on robbery and kidnapping charges in connection with sports memorabilia, basketball’s bad boy Dennis Rodman got into his share of trouble yet again. According to the celebrity Web site TMZ.com, Rodman is now being investigated for slapping a woman’s rear at Hennessy’s Tavern in Dana Point.

The Web site quotes a source who says Rodman hit the woman so hard that it left a “major mark.” But Rodman’s agent denied those charges saying that this was just another woman trying to get money out of the former star rebounder.

Continue reading "Rodman Investigated For Sexual Battery In Orange County Bar Incident" »

Sex charges, especially when you are a medical professional or a masseuse, can essentially mean an end to your career. People in these professions are walking a tightrope these days. Even school teachers are no exception to this fact. There is always the question of what is inappropriate touching and what is not. The law is very clear on that, but people are not.

We don’t know exactly which category the following story falls into, but it is a good example of how someone’s career may soon become non-existent because of the charges he is facing. According to a news report in The Orange County Register, a Newport Beach personal trainer is facing sexual battery charges and is being accused of inappropriately touching a female customer who was getting a massage from him Sept. 17.

Continue reading "Orange County Personal Trainer Faces Sexual Battery Charges" »

A former Orange County dance instructor faces charges of child pornography and sexual assault after one of the girls who attended the school found a hidden camera in the instructor’s home bathroom where he encouraged the girls to change their clothes.

According to a news article in The Orange County Register, 28-year-old Jason Alan Marian of Aliso Viejo was a former part-time dance teacher at the Mission Viejo Dance and Performing Arts Center in Laguna Niguel. Both Marian and his wife, who was also an instructor at that school, were fired in April after one of eight girls invited to the couple’s home for a party found a hidden camera in the restroom and turned it over to her father who in turn gave it to Orange County Sheriff’s Department officials. The article says the girl who found the camera was between 10 and 14 years old at the time.

Continue reading "Former Dance Instructor in Orange County Faces Pornography and Sexual Assault Charges" »

A Tacoma, Wash. jury on May 9 acquitted a man accused of having sex with the family dog, according to an Associated Press news report posted on KIRO TV’s Website.

Michael Patrick McPhail, 26, of Spanaway, was found not guilty in Pierce County Superior Court of first-degree animal cruelty, a felony. Assistant Pierce County Prosecutor Karen Watson said last fall that McPhail was the first person charged in the county under a new state law that made bestiality a felony.

McPhail held that his wife made up the story because she was seeking to end their marriage.

“I'm glad that justice was able to see it wasn't an action of my doing,” McPhail told reporters as he left the court building.

According to the Associated Press report, his wife, Jesika McPhail, contacted police and told officials that she had caught her husband engaged in sexual intercourse with their pit bull, Sara, last October. The case generated outrage among animal welfare advocates across the globe, many of whom called for McPhail to be prosecuted to the fullest extent of the law.

Continue reading "Jury Acquits Spanaway Man of Bestiality Charge" »