The following will be a brief introduction into the judicial system and criminal law. For the purposes of this introduction we will only discuss state and local jurisdictions without going into federal jurisdiction.
As you continue to read you will see why it is imperative that you have an expert criminal defense attorney at your side. It is the obligation of the defense attorney to view the facts of your case from a different angle. To realize what facts were wrongfully or unlawfully obtained by the prosecution and have them eliminated or found inadmissible in court. By having facts found inadmissible could result in your case being immediately dismissed. By having facts founded admissible means they will never be heard by a jury, therefore, never taken into consideration when determining the issue of guilt. The defense attorney also must look at the facts and attempt to show those facts could be taken in a different context other than that presented by the prosecution.
The judicial system basically consists of a judge, prosecutor, defense attorney, court reporter and jury if necessary. If you are arrested for crime you have the right to have your case heard by a judge or a jury. The judge in the courtroom is there to assure that the courtroom procedures are accurate, the rules of law followed and that you received a fair trial. The judge will also rule on arguments put forth by the prosecutor or defense attorney. If you choose to have your case heard by a judge only, the judge will also make a determination as to the issue of guilt. If you choose to have your case heard by a jury they, the jury, will decide the issue of guilt. If you were found guilty at a trial the judge is the person who will pronounce your sentence or punishment. The prosecutor is the person who presents evidence and witnesses against you during the process and represents the city or county in which the crime was allegedly committed. The court reporter will take down everything that is said, by each individual person, during all of the proceedings. This provides a written record of all comments, statements, motions, court rulings and testimony regarding all proceedings involved in your case. The defense attorney represents you as the defendant in the case. It is his responsibility to provide you with the best defense possible throughout the proceedings.
There are basically three levels of crimes. They are felony, misdemeanor and infraction. A felony is a crime that is punishable by incarceration in a state prison upon conviction. A misdemeanor is a crime that is punishable by incarceration in a county jail not to exceed one year, probation, monetary fine or a combination of the three. An infraction is not punishable by incarceration but normally by a monetary fine, loss of certain privileges and/or probation.
If you are arrested, in most cases, you are entitled to bail or to be released on your own recognizance. Generally, if you are charged with first-degree murder there will be no bail. When posting bail you must provide the court with a specific dollar amount or security as determined by the bail schedule or judge. A bail bondsman normally charges you 10% of the specific bail amount to provide a court with a bond for your release. Upon completion of your case you're bail will be returned minus any fines or court costs. If you used a bail bondsman at 10%, that 10% is their fee for providing the bond and is normally not refundable.
Bail is nothing more than a promise to appear in court on a given date. There is a document called a bail schedule. These are predetermined dollar amount which constitute bail for a given crime. If the prosecution feels that you are a flight risk or a danger to the community, they have the right to request a bail enhancement from the court. If they are successful the amount of bail will be decided by a judge. If you are released on an OR (own recognizance), you will be required to sign a document which is your promise to appear in a specific court on a specific date and time. You are not required to put up any money or security to be released from custody. When you are out on bail you are normally free to do what ever you choose and go were ever you may want to go, unless otherwise instructed by the court. If you are arrested for another crime while you are out on bail you have created a very serious problem for your self.
There are a number of books that identify and define the law. These books are normally referred to as codes. We will be discussing the California Penal Code, Health and Safety Code, Municipal Code, Welfare and Institutions Code and California Vehicle Code.
The California Penal Code describes most of the laws we commonly referred to such as, murder, rape, robbery, burglary, theft, (etc). The Health and Safety Code is normally used for violations of narcotics offenses. There are a number of other laws addressed in the Health and Safety Code, but for the purpose of this introduction we will be using it predominantly for narcotics offenses.
The Municipal Code generally contains laws that referred to violations within any given city or county. The law may not be a violation in another county or city. For example, talking on a cellular telephone while operating an automobile is a violation in some county's, but not all.
The Welfare and Institutions Code is designed for the laws governing juveniles.
The California Vehicle Code is designed to govern violations that pertain to vehicles, their operation and possession.
Since the code defines the crime, there are certain issues that are addressed in the definition. The issues are referred to as the elements of the crime. Each element must be proven, beyond a reasonable doubt, before anyone can be convicted of the alleged offense.
Certain crimes also possess the element of specific intent. Within the definition of the crime the specific intent must be identified as an element otherwise it is a general intent crime. Specific intent means the prosecution must prove the intention of the perpetrator at the time the crime is committed. A general intent crime merely means that the mere act of committing the crime shows the intent of the perpetrator.
We have Appellate Courts which consist of and include the United States Supreme Court. Their job is to further define the elements of the crime as intended by the Legislature. There are numerous crimes that are referred to by the general public that are truly a totally different crime. For an easy example we can look at two specific crimes, Burglary and Robbery that are normally confused by the general public.
Burglary is sometimes referred to as Breaking and Entering or B&E. You also have people indicating they have been robbed when in fact they have been burglarized. Burglary is defined as the entering of a structure, with the specific intent to commit grand theft, petty theft or any felony. To review the elements of this crime we must first define the word structure. A structure is anything that is surrounded by walls, covered with a roof and has the ability of being secured. The next element is specific intent. This is defined by the intent of the person when they first entered the structure. Their intent must have been, at the time of entry into the structure, to commit a theft or felony. For example, if a person enters a house with the intent to steal property of any kind they have committed burglary. There is nothing in the code or definition that requires that structure to be locked and secured at the time of entry. There is nothing in the definition that requires the possible suspect to break anything, window or door, while making entry. Another example is when a suspect enters a structure with the intent to commit any felony, rape, assault with a deadly weapon, murder, etc they have also committed the crime of burglary. The above felonies have nothing to do with a theft. There are also two degrees of burglary. First-degree burglary requires entry into an inhabited dwelling. This now brings up a new issue. Obviously, the dwelling is inhabited when the people who reside there are at home when the crime is being committed. But, what if the people who reside there are at work or on vacation when the crime is committed? Is this and inhabited dwelling? All other burglaries, other than inhabited dwellings, are considered burglary of the second-degree. Burglary is obviously a specific intent crime.
Now let's look at the crime of robbery. The definition of robbery is the taking of personal property, from the person of another by the means of force or fear. The elements of this crime are the taking of property from the person of another. From the person generally means from their hands or body or immediate control. Immediate control is generally defined as within the wingspan of the person. The next element of robbery is force or fear. This means that the property taken must have been forcibly removed from the person or the person voluntarily gave up their property to the suspect out of fear. Fear can be produced in many fashions. If someone pointed gun, knife or other weapon at you and demand your money or purse you are obviously in fear for your life and will voluntarily relinquish the property. If someone threatens your physical safety without producing a weapon you still may be in fear for your life or safety and voluntarily relinquish your property. Since specific intent was not mentioned in the elements of robbery, it is therefore a general intent crime. As you can see by the two simple definitions of robbery and burglary, they are two separate and distinct crimes with very different elements.
Now let's look at the laws of arrest. The California Penal Code defines the laws of arrest. There are arrests by peace officers and by citizens. The Penal Code states a peace officer may make an arrest, for a felony, at any time during the day or night, whether or not a felony has in fact been committed based on probable cause. A peace officer may make an arrest for a misdemeanor, if the misdemeanor was committed in his presence or if the peace officer has, or has knowledge of, an arrest warrant for that individual. A citizen may make an arrest, for a felony, if the citizen knows for a fact that a felony has been committed and the person being arrested committed the felony. A citizen may make an arrest for a misdemeanor, if the misdemeanor was committed in their presence.
A simple definition of probable cause is; give a reasonable, prudent person a set of facts and circumstances that would cause that person to reach a reasonable conclusion.
The laws of arrest pertaining to a peace officer indicate a peace officer may make an arrest for a felony, based on probable cause, whether or not a felony has in fact been committed. Example: A police officer is driving down a residential street at three o'clock in the morning and sees a person dressed in black and wearing mask. The officer has knowledge that there have been burglaries in this area in the past. The officer stops this person and determines that the person does not live in the area and has no viable excuse for being in the area. The officer may arrest this person for felony burglary even though the officer has no evidence that this person has committed a burglary in the area. The officer has just used his authority to arrest based on probable cause, whether or not this person had just committed a felony. Another example is: A police officer is driving down a residential street at three o'clock in the morning and sees a person dressed in black wearing a mask. The officer has knowledge that there have been burglaries in this area in the past. The officer stops the person and determines that the person lives in the area or is leaving a masquerade party in the area. The officer then must corroborate the person's alibi or show that the person is being untruthful before he has the probable cause to arrest.
The rules regarding arrests by a peace officer or citizen are the same regarding a misdemeanor crime. The easiest example is shoplifting. A store has internal security officers watch a person take a piece of merchandise from a display within the store. That person secretes that merchandise in their clothing and exit the store without paying for the merchandise. If the value of the merchandise is less than $400 the store security officers just witnessed a petty theft, a misdemeanor committed in their presence. They have the authority to make an arrest for that theft. A police officer is called to the scene and accepts custody of the perpetrator for the purposes of transportation and booking of the perpetrator only. The police officer is not arresting the perpetrator because the crime was not committed in the police officers presence.
Now that we have discussed arrests we should discuss your constitutional rights at the time of the arrest. There is a rule of law commonly referred to as your Miranda rights. This is a Supreme Court decision based on Miranda v. Arizona. There is a misconception with the general public that indicates if a person is arrested and not advised of their constitutional rights, per Miranda, their case will be dismissed. Your Miranda rights only pertain to any statements given to the officer and any evidence derived from those statements. The courts have ruled that a person need not be advised of their Miranda rights if the person is not in a custodial position while being asked accusatory questions. Miranda rights can be a very complicated issue. Example: If you are in handcuffs, in the back of a police car and are being asked accusatory questions, the answer is simple. You must be advised of your Miranda rights prior to questioning. But, let's assume you are the passenger in the vehicle that was stopped by the police. The officers order you out of the vehicle and tell you to sit on the curb. They begin asking you accusatory questions. The answer is not so simple. Are you free to leave? Are the officers on a fishing expedition? Would a court, at this point in this scenario, consider you in a custodial position? The courts have ruled that when you to speak to a police officer over the telephone and answer accusatory questions you need not be advised of your Miranda rights. It is the opinion of the courts that you could terminate this conversation by simply hanging up the telephone. The courts have also ruled that if a police officer asks you to come to the police station to answer questions and upon your arrival the officer tells you that you are free to leave at any time, you need not be advised of your Miranda rights. You are obviously intimidated by being in the police station and being questioned by the officer. You feel obligated to answer the questions. Even though the officer told you that you are free to leave, you are of the personal opinion that you must remain and answer the questions. Again, this is an issue that must be decided by a judge. The police normally do their best to put you in a position where you feel obligated to respond to their questioning without having to advise you of your Miranda rights. The simple definition of Miranda is you must be in a custodial position and being asked accusatory questions before Miranda applies. The issue here is the definition of custodial position. If a court determines that your Miranda rights were violated, any statements you gave and any evidence derived from those statements would be inadmissible in court. Unfortunately, the remainder of the case will stand on its own merits which could still result in a conviction.
Since we have been discussing the admissibility of evidence in court we should now discuss search and seizure. There are only a few ways that a peace officer has the right to search you, your premises or your vehicle. They can search by way of permission, search warrant, extreme emergency, incident to an arrest, if you are on probation or parole or by impound inventory of your vehicle.
Permission: Obviously, if the officer asks you for permission to search and you grant that permission, any thing he finds is admissible in court. Normally, when permission is granted the officer will have you sign a document indicating your permission. If he fails to do so, he has opened the door for an argument in court. We could say that permission was never granted or permission was only given under duress.
Search Warrant: A search warrant is an order by a judge to search a given location. Once a search warrant is executed and property recovered, a returned to search warrant must be given to the judge identifying the property seized. A search warrant can only be obtained by the officer by presenting an affidavit to a judge which produces an abundance of probable cause or reasons the search warrant should be obtained and served. There are only a few ways to attack a search warrant in court. The most recent rulings side with the prosecution. Courts have ruled that even though a defense attorney has shown the affidavit to be inaccurate on certain issues, it refers back to what was in the officer's mind at the time he presented the affidavit and its truthfulness. If we as defense attorneys are able to quash the search warrant, any property seized as a result of that search warrant would be inadmissible in court.
Extreme Emergency: This category is basically self-explanatory. Normally, extreme emergency requires a danger to the public or severe injury or death to an individual.
Incident to Arrest: Incident to arrest means the officers have the right to search your person, and surrounding area with in your wingspan or your vehicle at the time of your arrest. If you are arrested the officers have the right to search your person for evidence to the crime, weapons or narcotics to avoid having them enter the jail system and for the officer safety. If you are arrested the officers have the right to search the surrounding area of your arrested. The surrounding area is generally defined as your wingspan. Example: If you are seated in a stuffed chair inside a residence and are arrested the officers have the right to search that chair but not the remainder of the residence. If you are arrested while operating your automobile the officers have the right to search the automobile prior to impound.
Parole or Probation: If you are on parole or probation you will have a search and seizure clause as one of your conditions of probation. This search and seizure clause gives a peace officer the right to search you, your premises or your vehicle at any time of the day or night without a warrant. If you are renting a room inside a house the officers can search your room and any communal area with in the house where you may have access (kitchen, living room, bathroom, family room). They will not have the right to search any other bedroom belonging to any other person within the residence.
Impound Inventory: If you are arrested while operating your automobile, your vehicle is subject to search prior to impound. If you are operating a motor vehicle without a license, without proper registration or without insurance the vehicle is subject to impound. Although you are not physically arrested, the vehicle is subject to impound and can be legally searched.
If you are operating a vehicle that is not registered to you and incriminating evidence is found during an impound inventory search, the evidence found may not be connected to you depending upon the location where it was found within the vehicle. This is an argument that has to be presented to the judge on your behalf.
We will now review certain laws for which people are commonly arrested.
Homicide: also known as Murder.
There are degrees of murder within the Penal Code.
First-degree murder is considered a planned event. This is when the perpetrator plans his murder prior to its commission. First-degree murder is also any murder that is committed during the commission of another felony. Example: The perpetrator is attempting to rob a liquor store, during the robbery the gun being used by the perpetrator accidentally discharges killing the proprietor. This would be first-degree murder by definition.
Second-degree murder is not a planned event. A second-degree murder is usually a crime of passion or instant reaction. Example: The perpetrator becomes involved in a heated argument at which time the perpetrator grabs a gun and kills the victim. This was not a planned event but resulted in the death of another human being. Manslaughter is another type of murder. It can be charged with or without gross negligence. Example: The perpetrator is involved in a physical altercation with another person. The perpetrator strikes the other person causing that person to fall to the ground and sustain a serious head injury which results in death. The perpetrator was involved in an unlawful act which resulted in the death of another human being which could be construed as gross negligence. Example: The perpetrator is caring for an infant child. The perpetrator accidentally drops that child which results in extreme trauma and death. Depending upon what the perpetrator was doing and how he was doing it at the time the child was dropped, this could be construed as without gross negligence.
Vehicular Manslaughter can be charged with or without gross negligence. Example: The perpetrator is operating his vehicle while intoxicated on drugs, alcohol or a combination thereof (DUI) and is involved in a traffic accident. As a result of the traffic accident another person sustains injury which results in death. The perpetrator could be charged with second-degree murder or vehicular manslaughter with gross negligence. Vehicular manslaughter can also be charged as a misdemeanor in the State of California if gross negligence cannot be established. This is the only type of murder that can be charged as a misdemeanor.
Spousal Abuse can be charged as a misdemeanor or felony. Spousal abuse generally occurs during an argument between a man and woman. The man and woman need not be married but must be currently involved in or previously involved in a relationship. If the police are called to a location as a result of a spousal abuse and there is any physical evidence that the spousal abuse occurred the police are mandated to arrest the perpetrator. If the woman has redness to her face and claims the male slapped her, he will be arrested even if she objects to the arrest. Once the perpetrator is arrested the spouse sustaining the injury cannot drop the charges. The only person who can drop the charges is the Office of the District Attorney or the court. If the police arrive on the scene and see what appears to be mutual combat (both people hitting one another) they will arrest what they refer to as the dominant aggressor.
Generally speaking if the police respond to a radio call regarding a spousal abuse or spousal battery someone is going to go to jail. It can be the female or the male involved. If a male and female become involved in a physical altercation but are not in or have not been in a relationship it is considered a simple misdemeanor battery.
Criminal Threats is a crime where one person threatens the life or physical safety of another coupled with the ability to carry out the threat. This crime is sometimes charged in connection with a spousal abuse or argument. One person threatens to kill the other and has the ability to carry out that threat. It is normally charged as a felony.
Threatening or intimidating a witness in an effort to prevent their testimony in a court hearing and is generally charged as a felony. If you are being charged with a crime and you approach or have another person approach, on your behalf, a potential witness in that case you and/or the other person will be charged with this crime.
Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator. There are numerous subsections that define rape.
1) The person is incapable of consent because of a mental or developmental disorder which is known or reasonably should have been known to the perpetrator.
2) The act is accomplished by means of force, violence or threats of bodily injury.
3) The person is administered any intoxicating substance by the accused which prevents their resistance.
4) The person is unconscious of the nature of the act.
5) The person submits under the belief the perpetrator is the spouse.
6) The person is threatened with retaliation against the victim or any other person.
7) The person is threatened by the authority of a public official.
There is another section in the California Penal Code that indicates a perpetrator can rape their spouse. This crime is handled under another Penal Code section.
Unlawful sexual intercourse with a minor is a felony crime where the victim is under the age of 18 years but over the age of 14 years. There are additional subsections connected to this section that will cause additional punishment. One is the perpetrator is 10 years older than the victim.
Child molestation deals with children under the age of 14. The molestation can occur out of any act by the perpetrator for the purposes of sexual gratification. Upon conviction of this charge the perpetrator will face a mandatory State Prison sentence. This crime is commonly referred to as lewd and lascivious acts with the child. The lewd and lascivious can include, but are not limited to, penal penetration, digital penetration, penetration by foreign object, fondling, and oral copulation (etc). For the sake of argument the girl could be 13 years of age, sexually active and initiated the activity with the adult male. If the adult male knew or should have known the age of the child, the fact that she initiated the activity does not negate the crime.
Lewd Conduct is a misdemeanor and generally consists of a male masturbating his erect penis in a public place or a place open to public view. It can also consist of sexual activity between two adults in a public place or a place open to public view. This section is commonly used when a male is observed by the police in contact with a street prostitute. If the prostitute enters the male's vehicle the officers will attempt to follow the vehicle. If the vehicle stops in a public place the officers will wait a few minutes then approach the vehicle. They will look into the vehicle in an attempt to find the prostitute engaged in some type of sexual act. Both the prostitute and other person will be arrested for Lewd Conduct. Prostitution is an age old crime and still in existence. The definition of prostitution is very simple. It is a sexual act for a monetary reward. Anything of value can be considered a monetary reward. In today's case scenarios the police are having policewomen standing on street corners and roadsides in civilian clothing. A male will drive up to the would-be prostitute and engaged in conversation. During that conversation the undercover policewoman will consent to a sexual act for a monetary reward and tell the person to drive his vehicle around the corner or down the street. The undercover police officer will watch the vehicle drive toward the predetermine location at which time she will signal other awaiting officers. By the male driving his car toward the predetermine location constitutes an overt act toward the completion of the crime. As a result the male will be arrested for prostitution or solicitation for prostitution. Not only will he be charged with a criminal case, more times than not his vehicle will be impounded and could be sold at auction. The police are not required to return the vehicle to the arrestee.
Sex crimes are taken very seriously by the courts. If you are convicted of certain sexual assaults the punishment is State Prison and, upon release, you must register as a sex offender for the rest of your life. If you are a registered sex offender you must supply your personal information including your address to the police department or jurisdiction in which you reside. Each time you choose to move your residence you must contact the new jurisdiction and provide them with your personal information. If you are a registered sex offender and fail to provide your personal information as required, you will be arrested for a felony and prosecuted to the fullest extent of the law.
When we speak of punishment we are talking about the sentence handed down by the court after your conviction. Depending upon the type of crime your sentence could be anything from a fine, probation, County Jail not to exceed one year or State Prison for anything over one year. If you are convicted of multiple counts on one given event or multiple counts regarding multiple events your sentence can be concurrent or consecutive. A concurrent sentence simply means if you are convicted of multiple counts and given a sentence of incarceration for each count, those counts can all be served together, simultaneously. An example is if you are convicted on count one and given a sense of four years State Prison, convicted on count two and given four years State Prison you can serve a single four-year term and satisfy both convictions. A consecutive sentence, using the scenario above, means you must serve the first four-year term before you begin serving your second four-year term. This means to satisfy the consecutive sentence you would serve eight years to satisfy both convictions.
Most sexual assault crimes (rape, lewd and lascivious acts with the child, child molestation) normally carry a consecutive sentence.
Since we are talking about sentencing there are other allegations that can be incorporated in the filing of the crime for which you are standing trial. Those allegations are called enhancements. There are various types of enhancements which include, but not limited to, gang enhancements, use of a gun during the commission of crime, crimes against the elderly etc. These enhancements cause additional incarceration if they are found true. The enhancement cannot be served concurrently. An enhancement is normally served consecutive to the sentence for the original crime. For example, if you are convicted of a gang-related crime and are sentenced to four years for that crime and the court finds the crime was committed for the furtherance of the gang, the gang enhancement will be added to the four years of the original sentence. You must serve the original four years of the sentence before you can begin serving the time added for the enhancement.
Now let's talk about theft related crimes. There are numerous theft related crimes which include, but not limited to, petty theft, grand theft, embezzlement, grand theft auto, driving without owners consent, petty theft with a prior petty theft, identity theft, theft of a dog etc.
There is one thing we must remember. Every theft has one element in common. That element is the intent to permanently deprive the rightful owner of his property or item taken. Petty theft is a theft of property that has a value of less than $400. If you are shoplifting and take property or merchandise from the store valued at less than $400, you'll be charged with a misdemeanor petty theft if you have no prior arrest.
Grand theft is a theft of property that has a value of $400 or greater. If you are shoplifting and take property or merchandise from a store valued at $400 or greater you will be charged with a felony grand theft.
Petty theft with a prior petty theft conviction is a felony. If you have a prior conviction for any type of theft or theft related crime and are apprehended for a new theft of any kind you can be charged with a felony, petty theft with a prior. For example, you have a prior conviction for shoplifting an item valued at $20 and you are apprehended for a new shoplifting theft for an item valued at $1, you can be charged with a felony, petty theft with a prior, for the second theft with the property valued at one dollar. You can have a prior conviction for burglary and apprehended for a new shoplifting case, you can be charged with a felony, petty theft with a prior.
Embezzlement is the theft of property or money for which you have been entrusted. For the crime of embezzlement, there must have been a fiduciary capacity (a position of trust) on your part prior to your taking the money or property. For example, you keep the financial records or books for your employer. You take money from your employer's account and reroute or transfer some of that money to your account, without permission from the employer you have committed the crime of embezzlement. You could also be a grocery clerk and have a friend at your check stand. You let merchandise pass through your check stand without having your friend pay for that merchandise. You have committed the crime of embezzlement. This is what we mean by a position of trust or a fiduciary capacity.
Grand theft auto would seem to be self-explanatory. For the prosecution to prove grand theft auto they must be able to prove your intent to permanently deprive the owner of the automobile. For example, if you are apprehended dismantling any portion of a stolen automobile the prosecution would be able to prove your intent to permanently deprive the owner. If you are merely apprehended while driving a stolen automobile which has not been altered in any fashion from its original state the prosecution cannot successfully prove your intent to permanently deprive the owner. As a result, you could be charged with an additional count of driving without owners consent.
The theft of a dog can be a felony or misdemeanor depending upon the value of the dog. There is nothing in the Penal Code that indicates a theft of a cat is a crime. However, the theft of any animal for medical research, commercial use or slaughter can be charged as a misdemeanor or felony.
Identity theft is the use of another person's identity (name, date of birth, Social Security number, driver's license number etc) for your own personal gain. For example, obtaining credit cards or bank loans using another person's identity would be identity theft.
Extortion is another type of theft where the victim voluntarily relinquishes their property as a result of some type of threat or threat of exposure to himself or another person. For example, if a person approaches you and says give me $500 or I will tell your employer that you have a prior felony conviction the act of extortion has been completed. Another example is if a person approaches you and says give me $500 or I will beat up your wife the act of extortion has been completed.
Now let's talk about vandalism. Vandalism can be charged as either a misdemeanor or a felony. Vandalism is the intentional destruction or defacing of the property of another without their permission. If the damage caused by the vandalism is less than $1000 the crime is normally charged as a misdemeanor. If the damage caused by the vandalism is $1000 or greater that crime is normally charged as a felony. If the vandalism is gang-related (spray painting a wall with the gang graffiti) a gang enhancement can be charged in addition to the vandalism. Crimes against person include, but not limited to, assault with a deadly weapon, simple battery (sometimes referred to as assault and battery) or felony battery.
Assault with a deadly weapon is where the victim is assaulted by the perpetrator and a weapon is used. A weapon can be defined as a knife, gun, club, stick or even a foot. The weapon needs not impact or cause damage to the victim during the assault for the crime of assault with a deadly weapon to be charged. The mere displaying of the weapon in a rude and threatening manner is sufficient.
The crime of battery occurs when one person strikes, pushes or makes contact with another person which is not accidental. For example, a simple fistfight or pushing and shoving match between two people constitutes battery or mutual combat. If that simple fistfight can result in great bodily injury the simple battery graduates to a felony battery. The key issue is the likelihood of great bodily injury.
Conspiracy to commit a crime is a separate, independent charge. The crime of conspiracy requires two or more people to conspire to commit a crime and an overt act toward the commission of that crime. For example, if two people are sitting in their apartment and make a plan to rob the liquor store down the street there is no conspiracy until they take some type of action to rob the liquor store. That action is called the overt act. If they set their plan to rob the liquor store, drive to the liquor store and one or both enter the liquor store with the intent to rob the store the crime of conspiracy has been committed. The crime of conspiracy does not require the intended crime be completed. The crime of conspiracy is not normally charged by the prosecution unless the intended crime has been committed or attempted and two or more people are in custody. It is very difficult for the prosecution to prove the crime of conspiracy.
Accessory to a crime; Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony. (A principal is a person, who has been charged with, arrested for, committed or has been convicted of a particular crime)
We've looked at various crimes outlined in Penal Code. Now let's look at the Vehicle Code.
The one crime charged most in the Vehicle Code is driving under the influence, commonly referred to as DUI. Those from out-of-state sometimes referred to this crime as driving while intoxicated or DWI.
There are two separate and distinct portions to a DUI arrest. The first is the criminal court as it relates to the actual arrest, possible conviction and punishment. The second is the DMV. The Department of Motor Vehicles controls your driving privileges. It requires a separate and independent hearing in an attempt to save your driving privileges.
There are two separate subsections to DUI. There is an (a) section and a (b) section. Both the (a) and (b) section require the operator of a motor vehicle be under the influence of alcohol, drugs or a combination thereof and unable to safely operate motor vehicle.
Alcoholic beverages are self-explanatory. The drugs portion does not specifically referred to elicit or illegal drugs. The drugs can be prescribed drugs by a physician.
Normally, when a person is arrested for DUI they are charged with both the (a) and (b) sections.
The (a) section of DUI does not require any particular blood alcohol content while operating a motor vehicle. It simply requires that the operator of the vehicle be under the influence and unable to safely operate the motor vehicle.
The (b) section of DUI requires a blood alcohol content of .08% or above while operating a motor vehicle.
If you are arrested for DUI you must submit to a blood or breath test, upon request by the arresting officer, within three hours from the time of your arrest. Failure to submit to a blood or breath test will result in additional penalties, if convicted, in the criminal court and loss of your driving privileges for one year.
If you are stopped by law enforcement as a possible DUI driver, you are not required to submit to any other testing other than a blood test administered by a physician or nurse or a breath test administered at a local police station. The officer will attempt to question you regarding your possible consumption of alcoholic beverages or drugs prior to the arrest. He will also request you perform a number of field sobriety tests. You are not required to respond to the officer's questions other than identifying yourself. You are not required to perform any field sobriety tests or any breath test at the location of arrest. Simply advise the officer that you want your attorney present prior to responding to any questions or submitting to any field sobriety test. The officer is not required to advise you of your constitutional rights (commonly referred to as your Miranda rights) prior to asking you the questions or to perform the field sobriety tests.
After you are arrested the officer is required to complete the arrest reports. In his reports he is required to establish his initial probable cause for stopping your vehicle. The arrest reports normally contain the observation of some type of traffic violation prior to stop of your vehicle. That violation could range from speeding to a broken taillight. If you are subsequently arrested for DUI as a result of the stop for speeding, or any other traffic violation, you will not normally be charged with that violation or see that violation recorded on any paperwork you receive when you are released from jail on either your own recognizance or bail.
You or your attorney must contact the Department of Motor Vehicles within 10 calendar days from the date of your arrest. Weekends and holidays count toward the 10 day period. At that time we will request what's called a DMV hearing and a stay on your driving privileges. When you were arrested your driver's license was taken, unless your license was from out-of-state, and you were given a paper license which expires 30 days from the date provided. A stay on your driving privileges means you'll be able to continue to drive past the 30 days, without restrictions, until the results of your DMV hearing have been obtained. If we are successful in the DMV hearing your driving privileges will be reinstated immediately.
A DMV hearing is an administrative hearing which requires a preponderance of evidence only. (A preponderance of evidence is defined as 51% unlike a criminal court which requires guilt beyond a reasonable doubt or 99.9%) The greatest problem with a DMV hearing is the hearing officer is not only the judge but also the prosecutor. He or she have been trained by and paid by the Department of Motor Vehicles. As a result, if you are not skilled and educated with the process of a DMV hearing your chances of success are minuscule.
Our office will aggressively defend you in the DMV hearing and the criminal courts process. You must remember we only have 10 calendar days to contact the DMV and request your hearing and stay. If we are past the 10 day period your driving privileges will be automatically suspended in 30 days from the date of your arrest.
There are two types of DUI's. There are misdemeanor and felony DUI's. A DUI will remain on your driving record for a period of 10 years. If you are arrested for DUI more than three times within a 10 year period, the fourth and any subsequent DUI will be charged as a felony. If you are DUI and involved in a traffic accident where another person sustained injury, whether or not you are the primary cause of the accident, you will be charged with a felony DUI. Most other DUI's are misdemeanors.
If you are charged with a DUI and at the time of the arrest you had a child in the vehicle you could be charged with an additional count of felony child endangering.
If you are charged with a misdemeanor DUI and you have retained this office, you will not be required to appear in court. We will make all courtroom appearances on your behalf. Your first court date is called an arraignment. At the arraignment we will enter a plea on your behalf of not guilty. Because we have announced to the court that we are the attorney of record and we have entered a not guilty plea on your behalf the prosecution is obligated to supply us with discovery. Discovery is merely all documentation and physical evidence the prosecution intends to use at a trial. By obtaining this discovery we will have the opportunity to review the evidence with you for its legal content and accuracy. From this information we will be able to determine what defense may be utilized on your behalf. Because of the not guilty plea the case will be continued and we will be given a new court date for appearance. At the second appearance we will confront the prosecution with the weaknesses in their case and enter into negotiations on your behalf if that is in your best legal interest. If negotiations are not in your best legal interest we will then request a continuance for a trial date. During that time we will advise you of your options and liabilities if we proceed to trial. The decision to go to trial will be yours alone after our consultation.
There are a number of viable defenses regarding a DUI arrest. Some involve your personal metabolism rate. Others involve probable cause for the initial stop of your vehicle. While others involve the manner in which your blood or breath sample was obtained along with the equipment used to obtain the sample.
As previously stated, we will refer to the Health and Safety Code for the discussion of violations of narcotics related offenses.
Under the influence of a controlled substance is a misdemeanor crime. If you are operating a motor vehicle while under the influence of a controlled substance you can also be charged with DUI. The most difficult problem with an under the influence violation is that upon conviction the prescribed sentence is a mandatory 90 days County Jail. The testimony of the arresting officer, as a narcotics expert, is sufficient for a conviction. There need not be a drug test identifying a particular substance in your system at the time of your arrest. The arresting officer's expertise must be challenged for you to have any chance of an acquittal. If you have been arrested for under the influence of a controlled substance you should certainly discuss the matter with a criminal attorney who is an expert in the field of narcotics violations.
Straight possession of narcotics is normally filed as a felony. In some cases we can have the charge reduced to a misdemeanor depending upon the type of narcotics involved and the quantity being possessed at the time of the arrest.
Possession of Cocaine or Heroin is a straight felony regardless of quantity. Possession of Methamphetamine can be charged as a misdemeanor or felony depending upon numerous variables, one of which is quantity possessed at the time of arrest.
The Legislature is much more liberal in regards to straight possession of a controlled substance. Most legislators believe that narcotics violations stem from addiction which should be considered an illness. As a result, if convicted, the defendant should be placed in a rehabilitation atmosphere rather than incarceration. If you are a first-time offender and at the time of your arrest possessed a small quantity of narcotics, you may be eligible for a diversion type program. If you are eligible this doesn't mean you walk away free. You must first plead guilty to a felony, a preset number of years of incarceration will be suspended in lieu of a specific rehab program, three years probation during which time you must complete the rehabilitation program and not violate any other laws. If you successfully complete the program, at the termination of probation we can request your case be dismissed. If you fail to complete the rehabilitation program or get arrested for any other offense while you are on probation, you will be returned to court on a probation violation and possibly be sentenced to the preset number of years of incarceration that was previously suspended. This simply means that if a judge gave you three years suspended in lieu of the program and you violate probation you can be returned to that judge and sentenced to three years incarceration in state prison. Another thing you must remember is the probationary sentence will contain a search and seizure clause. This means that any law enforcement official can search you, your residence or your vehicle at any time of the day or night, without a warrant, upon demand. If you fail to submit to the search you will be arrested for a probation violation and returned to the court. If, during the search, contraband is found, whether it pertains to narcotics or any other crime, you will be arrested for the new contraband and, in addition, charged with the probation violation.
Law enforcement officials are normally not very liberal but are required to follow the law. It is the opinion of law enforcement that people involved in narcotics possession are also responsible for numerous other crimes such as burglary and robbery. With this thought in mind, it is not uncommon for law enforcement officials to take a simple arrest for possession and turn it into a possession or transportation for the purposes of sales. In the past there were a number of things that must be shown and required prior to an arrest for possession or transportation for the purposes of sales. Those things were quantity, packaging, scales, pay and owe sheets (etc). In today's society a law enforcement official may make an arrest for possession for sale strictly based on quantity or the manner in which the narcotics are packaged. As a result, you can be in possession of 2 grams of cocaine that were packaged in 2 separate 1 gram bindles and be arrested for possession for sale. If you take the same scenario and add the fact that you were driving an automobile at the time, you could be arrested for possession and transportation for the purposes of sales. You can be in possession of a small amount of narcotics, packaged in a single container, but also have a scale or pay and owe sheets and suffer an arrest for the possession and transportation of narcotics for the purposes of sales. Law enforcement officials will look for anything that may suggest sales or transportation for the purposes of sales to avoid the defendant possibly obtaining any type of probation or rehabilitation rather than incarceration upon conviction. If you have prior narcotics related arrests, technically, you are not eligible for any type of rehabilitation program. Our office, on occasion, has been successful in obtaining rehabilitation programs for second and third time offenders. A number of variables come into play but there is a possibility.
If you're apprehended with a large quantity of narcotics you must remember to consult an attorney prior to making any statements to any law enforcement officials. There may be search and seizure issues or the issue of knowledge that will provide an outstanding defense which could result in your case being dismissed. Law enforcement officials enjoy converting arrested suspects for narcotics violations into informants. They will attempt to promise you leniency or even dismissals to obtain information regarding other criminals or narcotics dealers. If you are so inclined to supply law enforcement with this type of information please contact us first. We will intervene with a written contractual agreement between you and the agency making you the promise. The contract will specify what information will be given and what you will receive in return for supplying that information. Once that agreement is reached it will be reviewed by the officers Commanding Officer and the District Attorney. Once all parties have reviewed and agreed to the conditions contained in the contract, will we then permit you to supply the information. Most of the time the law enforcement officer seeking the information does not have the authority to promise you anything. He is simply attempting to obtain additional information to assist him with future arrests. He does not have your best interest in mind.
Straight possession and possession or transportation for the purposes of sales is not an easy case to defend. There are a number of issues that need to be reviewed prior to a preliminary hearing or trial. These issues are technical issues having to do with probable cause, search and seizure, knowledge (etc). It is imperative that you have an expert criminal defense attorney review the issues in your case. You must remember that you are nothing more than another name if you use a public defender or court appointed attorney.
Narcotics possession is not only possession of illicit drugs, it can also be prescription drugs were the drugs were prescribed to a person other than the person who is in possession. This also brings us to the topic of forged prescriptions or the uttering of a forged prescription to a pharmacy.
These types of narcotics violations may not only cause a possession charge but also could include a forgery, burglary, theft or receiving stolen property charge in addition to the possession.
Be advised, law enforcement is currently using another ploy to arrest and prosecute suspected narcotics users. Law enforcement will place an undercover police officer in a known narcotics area where he will stand on the street and appear to be a narcotics dealer. He will approach your vehicle and attempt to sell you some type of narcotics. Normally it will be rock cocaine or methamphetamine. A macadamia nut, or piece thereof, is placed in a small baggie and sold as rock cocaine. Another substance is generally used and sold as methamphetamine. Once you purchase the item you drive away from the undercover officer. Shortly after leaving the area you will be stopped by a uniform police car. The uniformed officers will search you and the vehicle until they find the item you purchased. Once they find the item they will place you under arrest for attempted possession of narcotics. This is a felony and you will be prosecuted. The courts have held that this procedure by law enforcement is legal. You can not be charged with possession of narcotics since the item that was purchased was not truly narcotics. As a result you can only be charged with attempted possession. There are defenses to this type of case but each case is different. The conversation with the undercover officer is different. The stop by the uniform police officer and subsequent search may be a violation. It is imperative that you contact us immediately for our free consultation.
Asset Forfeiture; Asset forfeiture is a tool commonly used by law enforcement, especially in narcotics related crimes, to seize the arrested person's assets. It is the opinion of law enforcement that if you are involved in criminal activity the proceeds (money) you gained, as a result of that activity, was used to purchase your assets (car, home, jewelry). For example, you are arrested in your vehicle and narcotics were found. Your vehicle is a brand-new SUV type vehicle. The vehicle is registered to you. If the officers arrest you for possession or transportation for sales they have the authority to impound and hold your vehicle and began asset forfeiture proceedings. This forces you to show proof that the money you used to purchase that vehicle was not as a result of narcotics transactions. The burden of proof in an asset forfeiture proceeding is with the defendant not with law enforcement. Unlike in a criminal court were the burden of proof is with the prosecution. This simply means that all the officers have to do is start the proceedings and it is your responsibility, not law enforcement's, to prove that the money used to purchase the item in question was not as a result of criminal activity. The officers do not have to prove that the money used to purchase the item seized was obtained as a result of criminal activity. The officers can do the same thing with your residence, jewelry or any other personal property that belongs to you. If you are unable to show how you obtained the money to purchase the items seized, law enforcement has the authority to keep the items and sell them at auction. The proceeds from the auction go to the law enforcement agencies for narcotics enforcement. You will lose any money you have invested in the items seized. If asset forfeiture proceedings are brought forward against you and your property, you must be notified in writing. You have the right to defend your position in a hearing. Because our office has handled so many asset forfeiture proceedings we are very familiar with what is required as a burden of proof. Normally, we are successful in stopping the proceedings prior to a hearing through dialogue with the agency and physical evidence. We always attempt to stop the proceedings prior to a hearing. You don't want a judge or hearing officer to form the opinion that any items seized were as a result of criminal activity. This could cause additional problems with other assets being seized along with notification to the Internal Revenue Service for possible unpaid taxes for non reported income. This could result in federal criminal charges being brought against you for things such as tax evasion. It is imperative that you contact our office immediately if you have been arrested for possession or transportation for the purposes of sales, sales itself or manufacturing and distributing narcotics for sale.
Listed below is some additional information that you may find interesting.
Heroin was introduced to this country by our government to assist our military troops who were addicted to and withdrawing from Morphine as a result of injury sustained during combat. Heroin is a derivative of Morphine. It was the belief of our government that a person addicted to Morphine could be weened off the Morphine with the use of Heroin which was not as addictive. Morphine also required medical oversight for withdrawal symptoms. Withdrawing from Morphine could be deadly. If a person addicted to Heroin attempts to withdraw without medical oversight, it will be very painful and they may wish they were dead, but they will not die. As a result of Heroin, Methadon was introduced as a synthetic substitute narcotic in the treatment of Heroin addiction. We as a society are now also forced to deal with the Methadone addiction.
There are a number of upstanding citizens of our community who are addicted to drugs. These are normally people in high stress positions or a high stress house wife with children. Without these people realizing it they are consuming anti-anxiety drugs, prescribed by their physician, on a daily basis. Their body becomes accustomed to the dosage which requires a higher dosage of the same medication to achieve the desired results. This information was learned through a hospital survey that was conducted. The hospitals were finding that a number of their patients who were being admitted for elective surgery were going into narcotics withdrawals, some of whom died. The patient did not realize the addictive nature of the anti-anxiety drugs they were taking and as a result did not inform the admitting physician. Most anti-anxiety drugs require medical oversight if their usage is going to be stopped. You must remember that if you are taking anti-anxiety drugs and are operating a motor vehicle you are subject to arrested for DUI.
It's important to have an experienced criminal lawyer in cases like this. We are EXPERTS in the field of narcotics violations. I strongly advise you to contact our office for your free consultation.
The Welfare and Institutions Code (WIC) primarily deals with juvenile situations and arrests. For the purposes of this discussion we will be dealing with primarily three separate sections of the WIC, sections 300, 601 and 602.
The Juvenile Court is very similar to an adult court. The Juvenile Court is designed totally with rehabilitation in mind. When an adult is arrested an information is filed with the District Attorney's office and the court. When a juvenile is arrested a petition is filed with the District Attorney's office and the court. A juvenile offender does not have the right to a trial by jury. A juvenile trial is very similar to a trial in an adult court but is only heard by a judge. In an adult court a defendant is either found guilty or is acquitted. In a Juvenile Court the judge will either sustain the petition or not sustain the petition. If the petition is sustained the court has the authority to incarcerated the juvenile, send the juvenile home on probation or place the juvenile in another atmosphere under constant supervision.
Most juveniles are under the impression that the court only has jurisdiction with them until the juvenile reaches age 18. This is a misconception. The Juvenile Court has the authority and can incarcerate a juvenile in a California Youth Authority placement until the juvenile reaches the age of 25.
The prosecution has the right to what is called a fitness hearing. In a fitness hearing the prosecution will attempt to show that the juvenile involved in a specific crime should be treated and tried as an adult. The court can deem the juvenile fit to be tried as an adult. If the court reaches this determination the juvenile will be tried in an adult court. The only difference is that a juvenile cannot be subject to the death penalty if the juvenile is being tried as an adult. If a juvenile is tried as an adult they can be given a life term and not be released at age 25.
Section 300 of the Welfare and Institutions Code primarily deals with child or juvenile victims. This section gives law enforcement or the Department of Children Services the authority to take a child or juvenile into custody for their, the child's, protection. If this happens the Department of Children Services will take responsibility for placement and supervision of the concern child. If a parent is unfit or is placing a juvenile or child in a position of danger the authorities have the right to take custody that child.
Section 601 of the Welfare and Institutions Code is what is referred to as a pre- delinquent section. If a child is a constant runaway or incorrigible the authorities have the right to take that child into custody. Technically, a child or juvenile running away from home or failing to follow the rules of the household on a consistent basis is not a violation of law. But under 601 WIC the authorities can take that juvenile into custody and placed them with the Department of Children Services. The Department of Children Services will then take the responsibility for the supervision and placement of the concern child.
Section 602 of the Welfare and Institutions Code is what is referred to as a delinquent section. This is the section that the juvenile is technically arrested for when they are arrested for a crime. For example; if an adult is arrested for burglary their arrest and booking charge will be 459 PC (Penal Code). If a juvenile is arrested for burglary their arrest and booking charge will be 602 WIC/459 PC. The authority to arrest and book a juvenile is with the Welfare and Institutions Code. To have the petition sustained in a Juvenile Court all of the elements of burglary must be proven in the above example. A juvenile can be arrested for any crime in any criminal code but the arrest will always be pursuant to 602 WIC.
The criminal codes indicate that a child under the age of 14, technically, cannot commit an offense. It is the obligation of the prosecutor to demonstrate to the court that the child involved knows the difference between right and wrong, truth and lie (etc). The court will then make the determination as to whether or not the child knew the wrongfulness of the act and can be held responsible for their actions.
As you can see a Juvenile Court preceding is a very sensitive issue. It is incumbent upon you to contact our office for your free consultation. We are EXPERTS in juvenile law and juvenile proceedings. We serve Van Nuys, the San Bernadino, Orange County, Los Angele, Riverside, San Diego and Santa Barbara areas.