Specific Crimes

Below you will find a list of the most common types of crimes and a brief discussion of some of these crimes. The crime of which you were accused may not be included in the discussions below. This does not mean that said crime is not punishable by law. If you have been formally charged with a crime, contact a criminal defense attorney immediately.

 

Specific Crimes in General
 

Under California law, it is illegal to use, possess, possess with the intent to sell, sell, and transport any drugs classified as "controlled substances." These substances include, but are not limited to, the following: marijuana, methamphetamine, cocaine, heroin, and various kinds of hallucinogenic and "club drugs" such as LSD and ecstasy.

 

How heavily a drug offense is prosecuted depends almost entirely on the amount of controlled substance possessed, the type of controlled substance possessed, and the reason for the possession. Simple possession of a small amount of a controlled substance is prosecuted much less heavily than the manufacturing and distribution of a dangerous drug such as methamphetamine or cocaine.

 

Simple possession of a small amount of a controlled substance or operating "under the influence" of a small amount of a controlled substance are the least serious of all drug offenses. For Simple Possession of a controlled substance, first-time offenders generally pay a fine, perform public service work, attend Narcotics Anonymous (NA) meetings, and are placed on informal probation for a period of three years. For "Under the Influence" of a controlled substance, first-time offenders face a mandatory minimum sentence of 90 days in jail or work furlough, as well as fines, public work service, and NA meetings.

 

Fortunately, first-time offenders for both possession and "under the influence" crimes can participate in a drug diversion program in which the offender pleads guilty to possession and/or under the influence of drugs and completes a three-month drug education program. If the offender successfully completes the diversion classes and does not violate any other laws in an 18-month period following the initial guilty plea, he or she will be entitled to have the charges dismissed and any arrest record erased.

 

Transportation of a small amount of a controlled substance is usually punished in the same manner as simple drug possessions and "under the influence" offenses. First time offenders are eligible for probation, NA meetings, fines, public work service, and/or a drug diversion program.

 

Under a new law entitled Proposition 36, if you are on probation or parole for a non-violent felony offense, you may qualify for probation if your present case involves a simple possession or transportation crime. Proposition 36 requires that eligible non-violent drug offenders serve their time in a drug treatment program instead of in jail or prison.

 

Transportation of a large quantity of an illegal drug is as serious a crime as possession with intent to sell. Accordingly, cases involving sophisticated conspiracies to trafficking large quantities of drugs are heavily penalized. For these cases, prosecutors want even first-time offenders to serve state prison sentences. Ultimately, however, the particular role that a participant played in these cases weighs heavily in that participant's sentencing. If you served as a mule (you either knowingly or unknowingly transported somebody else's substances) to a drug trafficking project, you will likely receive a lot less time than if you were a known ringleader of a distribution group.

 

If the prosecution's case against you is based on weak circumstantial evidence, or if the evidence against you was the result of a flawed search or seizure, your lawyer should attempt to either get the charge[s] dismissed or bargain the underlying offense down to a much less serious charge. Even if the evidence against you is strong and the outcome of a valid search, your lawyer can attempt to negotiate a favorable resolution. For example, your attorney might be able to submit to the court a psychological evaluation indicating that you have an addiction problem and are not otherwise a career criminal. If the court is so convinced, you may receive probation and/or drug rehabilitation.

 

Where you have violated your parole or probation with a serious drug offense, your attorney can negotiate to have strikes or enhancements stricken from your record. This will result in a lower prison sentence to run concurrently with your parole or probation violation.

 

In 1996, California passed Prop 215 (the Compassionate Use Act) to allow medicinal use of marijuana for those diagnosed as gravely ill. Since the passage of Prop 215, the Drug Enforcement Agency (DEA) and other federal law enforcement agencies no longer target legitimate medicinal marijuana dispensaries. Nonetheless, both federal and state officials continue to grapple with separating legitimate users and suppliers of medical marijuana from illegal drug operations. This ongoing struggle has resulted in selective enforcement and unequal application of the law.

 

 

Provisions regarding who may possess, buy, transport, and cultivate marijuana for medical use are set by Prop 215 and the Medical Marijuana Program Act (MMPA) as well as official guidelines released by the California Attorney General in 2008. According to these provisions, only individuals diagnosed with a serious illness and a recommendation from a physician qualify for medical use of marijuana. California law permits physicians only to "recommend" use of medical marijuana. This recommendation can be verbal or written.

 

Qualified patients and their designated primary caregivers are permitted to buy, possess, and transport the drug. To qualify as a primary caregiver under California's Medical Marijuana Law, an individual must reside in the same county as the patient. He or she also must have consistently assumed responsibility for the housing, health, or safety of the patient.

 

Under Prop 215, the amount of marijuana possessed by a qualified patient or caregiver must be "reasonably related to the patient's current medical needs." The MMPA, however, quantifies this amount as a maximum of 8 ounces dried, 6 mature plants, or 12 immature plants unless the doctor's recommendation specifically states that the patient requires more to meet his or her medical needs. This limitation was invalidated by the California Appellate Court in the 2008 landmark case of People v. Kelly on the ground that the legislature cannot amend the provisions of a voter proposition without voter approval. People v. Kelly is currently being considered by the California Supreme Court.

 

To prevent illegal drug operations from using medical marijuana as a front for their activities, California Law allows only legally recognized cooperatives (or "co-ops") or collectives to grow and supply medical marijuana. While these organizations cannot sell the drug for profit, they can seek "reimbursement" from members to cover operating and overhead expenses.

 

To be legally recognized, a co-op or collectives supplying medical marijuana must sell and buy the drug from members only. Only qualified patients and primary caregivers may be members. Accordingly, only qualified patients and primary caregivers may buy or grow the drug for the organization. The State Attorney General's guidelines also require co-ops and collectives to maintain up-to-date business records with member information and keep track of the expiration dates on all doctor recommendations.

 

If you have been approved for medical use of marijuana, you should consider applying for a MMP identification card from the state. The card serves as official proof of sanctioned medical marijuana use and can be shown to any law enforcement official who questions your status as a medicinal user. If you are found in possession of marijuana and do not have with you a written doctor's recommendation or a MMP identification card, you may be arrested on drug charges.

 

For more information on the medical marijuana laws in California or help defending criminal charges related to drug possession or operation of a dispensary, contact an experienced criminal defense attorney today.

 

California Vehicle Code 23152(a) makes it a crime to drive under the influence of alcohol and/or drugs. A "drug" is any substance other than alcohol that affects your nervous system, brain, or muscles. To convict you of driving under the Influence of a Drug (DUID), the prosecutor must prove beyond a reasonable doubt that you were operating a vehicle while under the influence of a drug. You drive under the influence of a drug when that drug impairs you to the point that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. DUI of drugs is a misdemeanor in California. The offense can be charged as a felony if it is your subsequent DUI offense, you have one prior felony DUI conviction, or your driving caused an accident that injured a third party.

 

To convict you of driving under the influence of alcohol (DIUA), the prosecutor must prove the following: You were driving or were in actual physical control of a motor vehicle while under the influence of alcohol or you had an alcohol concentration (BAC) of 0.08 or greater. In other words, the prosecutor must prove that, as a result of drinking or consuming an alcoholic beverage, your mental capacities were so impaired that you were no longer able to drive a motor vehicle with the caution of a sober person under similar circumstances. In the alternative, the prosecutor must prove that, at the time of driving, your blood alcohol level was a 0.08 or higher.

 

If your BAC was a 0.08 or higher, you will get charged with two misdemeanor crimes: DUI under Vehicle Code Section 23152(a) and Driving with Excessive BAC under Vehicle Code Section 23152(b). You will be charged with a felony DUI if your DUI caused injury or death to another, you have 3 or more prior DUI convictions within a ten-year period, or you have at least one prior felony DUI conviction.

 

The DUI Arrest

What are the police looking for in your driving?

A DUI case typically begins with a traffic stop. You may be pulled over for suspicion of DUI because of driving patterns such the following: Lane straddling, wide turning radius, weaving, swerving, drifting, almost striking object or vehicle, driving on other than designated highway, speeding or driving below the limit, stopping without cause in traffic lane, following too closely, braking erratically, signaling inconsistently with driving actions, responding slowly to traffic signals, accelerating or decelerating rapidly, and not using headlights.

 

You are now pulled over: What are the symptoms of intoxication that the Police look for?

Once the officer has conducted a lawful traffic stop, he or she will investigate whether you display any of the following symptoms of intoxication:

 

Odor of alcohol on breath

Flushed face

Red, watery, glassy and/or bloodshot eyes

Slurred speech

Fumbling with wallet trying to get license

Failure to comprehend the officer's questions

Combative, argumentative, jovial or other "inappropriate" attitude

Staggering when exiting vehicle

Swaying/instability on feet

Leaning on car for support

Combative, argumentative, jovial or other "inappropriate" attitude

Soiled, rumpled, disorderly clothing

Stumbling while walking

Disorientation as to time and place

Inability to follow directions

At this investigatory stage, the officer may attempt to engage you in conversation. Politely decline to answer any of the officer's questions. However, always be courteous and cooperative with the officer and follow his or her instructions. Your attitude during the stop may affect your ability to get the DUI charge dismissed or reduced.

 

If at the initial encounter with the officer you manifest objective symptoms of intoxication, the officer will ask you to perform a series of field sobriety tests (FSTs) and/or to blow twice into a handheld breathalyzer. If you fail these preliminary examinations, you will be arrested. After the arrest, the officer usually will ask you to take a blood or breath test at the police station, jail, or hospital. You are required by law to take this chemical test. If you refuse, you may face tougher penalties and a one-year driver's license suspension.

 

For a misdemeanor DUI, the police will release you within a few hours of arrest and booking. For a felony DUI, you may have to post bail. Upon release, you will be given two documents: a citation to appear in court and a pink temporary license. Your California Driver's License will be confiscated and mailed to the DMV.

 

If you are charged with Driving Under the Influence of Alcohol, you must demand a hearing from the DMV within 10 days of your arrest. Otherwise, your license will go into suspension. It is best to have your attorney schedule the hearing for you so that he or she can set the hearing far enough to adequately prepare. Generally, your attorney will conduct the hearing on your behalf. Your attorney's primary goal is to convince the DMV not to suspend your driver's license and to use the hearing as an opportunity to gather evidence that may prove useful in court. For example, in an attempt to detect any mishandling or mistakes in the investigation of your DUI, your attorney can subpoena the arresting officer to testify at the DMV hearing. Your attorney may also subpoena the breathalyzer's maintenance and calibration logs to detect any history of malfunctions and inaccurate readings.

 

At the conclusion of the hearing, the DMV's hearing officer takes your attorney's arguments into consideration and later issues written findings. If the DMV finds in your favor, your license would not be suspended (but a DUI conviction in court could trigger a separate suspension). If the DMV finds against you, your license goes into suspension. You can then get a restricted license within 30 days. A restricted license allows you to drive to and from work related activities or any court or DMV imposed alcohol programs.

 

Note that DMV hearings only occur for DUI of alcohol arrests. There is no DMV hearing if you got arrested for Driving Under the Influence of a drug. However, a court conviction for a DUI of a drug will trigger a driver's license suspension.

 

Your DUI case will likely involve several court dates and can last over several months. During this time, your attorney collects evidence, submits motions, and negotiates with the judge and prosecutor to procure a dismissal or a reduction in the charges against you as part of a plea bargain. The most common plea bargain is a reduction of the Vehicle Code Section 23152(a) and Vehicle Code Section 23152(b) charges to a California "wet reckless" or a California "dry reckless."

 

A "dry reckless" is misdemeanor reckless driving pursuant to Vehicle Code Section 23103. A California dry reckless has significant advantages over a California DUI. These advantages include no mandatory sentence enhancements for repeat offenders, shorter county jail sentence, shortened probation period, a reduced fine, no mandatory court-ordered license suspension, and no mandatory DUI school or, at most, a six-week program. A prosecutor is likely to agree to a dry reckless reduction if your BAC is closer to 0.08 % AND there are serious flaws in the government's case against you.

 

A California "wet reckless" carries the same advantages over a California DUI as does a "dry reckless." Unlike a dry reckless, however, a California "wet reckless" is a priorable offense. This means that you will suffer increased penalties if you are convicted of a DUI within ten years of sustaining a conviction for a wet reckless. A prosecutor is likely to agree to a wet reckless reduction if your BAC is close to 0.08% OR there are some other weaknesses in the government's case against you so that the prosecutor would rather see you convicted of an offense than risk losing at trial.

 

If your attorney cannot negotiate on your behalf a favorable plea bargain, your DUI case will proceed to jury trial. Prosecutors and judges often give better deals after a DUI Case proceeds to trial, as there may be more trials on the docket than courtrooms available. Also, weaknesses in the government's case might become more apparent after a trial district attorney thoroughly examines the evidence against you.

 

A California DUI arrest should not necessarily amount to a DUI conviction. Depending on the particular facts of your case, there are defenses that an experienced California DUI attorney can assert on your behalf. Below is a brief overview of the four most commonly argued defenses.

 

A law enforcement agent may pull over a driver for a DUI investigation only if the officer has probable cause that the suspect is driving under the influence or is engaging in a traffic violation. If it can be proven that the officer had no justifiable reason for the traffic stop, the entire DUI case will be thrown out.

 

If you are charged with a DUI, a prosecutor will rely on your driving pattern as evidence that you were driving under the influence of alcohol or drugs. Most often, this so-called "pattern" includes the arresting officer's allegations that you were speeding or weaving within your lane. An experienced DUI attorney will have the officer admit that the majority of traffic violations are committed by sober people and that a variety of traffic violations that police frequently cite as the basis for a traffic stop are not even recognized by the National Highway Traffic Safety Administration (NHTSA)—the nation's leading authority on DUI—as characteristic of drunk driving.

 

In addition to your driving pattern, your physical appearance plays an integral role in your DUI prosecution. The arresting officer will testify that you were "under the influence" because you had red-watery eyes, slurred speech, a flushed face, the strong odor of alcohol on our breath, and/or an unsteady gait. An experienced criminal defense attorney will address all the "innocent," explanations—e.g., eye irritation, allergies, fatigue, etc—that could have led to these "objective" signs of intoxication. Furthermore, a knowledgeable defense attorney will elicit from the officer testimony that actual alcohol has no odor and that there is no way to tell by smell alone if you have been drinking an alcoholic beverage.

 

Your BAC at the time of Chemical Analysis is not conclusive evidence of your BAC at the time of driving

The key component to a California DUI of alcohol is that the suspect was under the influence and/or had a BAC of 0.08 or higher at the time of driving. Note that your BAC level at the time of chemical analysis is not conclusive of your level of intoxication at the time of driving. Because it takes a while for alcohol to be absorbed into your system, it is possible that your BAC was under the limit while you were driving and over the limit by the time you were administered a blood test. This defense typically works if there is an extended amount of time between your initial detention and the chemical test.

 

If you do not perform satisfactorily on the Field Sobriety Tests (FSTs), the prosecution will rely heavily on your poor performance to conclude that you were driving while under the influence. An experienced defense lawyer will explore the variety of factors, such as your natural physical coordination, that can account for your performance on these "balance and coordination" exercises. Depending on the particular facts of your case, a seasoned defense lawyer may get the investigating officer to admit that the number of things that you did right while performing your FSTs far exceeded the number of things that you did wrong. This would indicate that you were responding with the caution characteristic of a sober person.

 

California Vehicle Code 14601 and its related sections (14601.1, 14601.2, 14601.3, and 14601.5) prohibit driving in California while your driver's license is suspended or revoked. To convict you of any of these misdemeanor charges, the prosecutor must prove that you were driving with the knowledge that your license was suspended or revoked. This knowledge requirement is a key difference between Vehicle Code 14601 offenses and a violation under Vehicle Code 12500 (which prohibits driving without a valid license). The latter carries a shorter maximum jail sentence and less fines. In addition, unlike an offense under Vehicle Code 14601, a Vehicle Code 12500 is not a "priorable" offense.

 

For purposes of a VC 14601 conviction, California law presumes that you had knowledge of your driver's license suspension or revocation if:

 

The DMV mailed you a notice via First class mail; or

A police officer told you about the suspension or revocation when you were arrested for the offense for which your driving privilege was suspended; or

A judge informed you of the suspension/revocation at the time when he or she sentenced for the violation that resulted in your suspension/revocation.

If the prosecutor can show that any of the above steps was met, the judge/jury may, but not are not required to, infer that you knew your license was revoked or suspended. Your California criminal defense attorney can challenge this presumption by raising the possibility that the notice of suspension was mailed to the wrong address or that you were never actually told of your suspension by a judge or other law enforcement officer.

 

The penalties for a VC 14601 Driving with a Suspended License offense include informal probation, county jail, and fines. The severity of these penalties depends on a variety of factors such as the reason your license was suspended, whether you suffered prior convictions for driving with a suspended license, and your driving history. Generally, you will suffer harsher penalties if your license was suspended or revoked because of a DUI conviction, a California vehicular manslaughter conviction, or a finding that you are a habitual traffic offender.

 

California domestic violence laws prohibit the threat or use of physical force against an intimate partner. The following are the most common domestic violence crimes:

 

Penal Code §273.5 PC Corporal Injury to a Spouse or Cohabitant -- Penal Code 273.5 makes it illegal to inflict upon an intimate partner a "corporal injury" resulting in a "traumatic condition." This California domestic violence law can be charged if the alleged victim is a current spouse, former spouse, cohabitant, or parent of the batterer's child.

Penal Code §243(e)(1) PC Domestic Battery -- Penal Code 243(e)(1) makes it a misdemeanor crime to inflict force or violence on an intimate partner. Unlike Penal Code 273.5, this California domestic violence law does not require a visible injury.

Penal Code §273(d) PC Child Abuse -- Penal Code 273d makes it a crime to inflict "cruel or inhuman corporal punishment or injury." California child abuse laws allow a parent reasonable latitude to discipline a child but draw the line where the punishment injures the child.

Penal Code §273(a) PC Child Endangerment -- Penal Code 273(a) makes it a crime to willfully endanger the safety or health of a child.

Penal Code §368 PC Elder Abuse – Penal Code 368 makes it a crime to inflict physical abuse, emotional abuse, neglect, endangerment, or financial fraud on a victim 65 years of age or older.

Penal Code §422 PC Criminal Threats -- Penal Code 422 makes it a crime to communicate a threat of serious harm to someone with intent to induce fear in that person and the person thereby sustains actual fear. A criminal threat may be charged as a misdemeanor or a felony. As a felony, a criminal threat counts as a strike under California Three Strikes Law.

The penalty and sentencing for crimes of domestic violence depend on the seriousness of the injuries sustained by the victim and the defendant's criminal record. But most counties in California impose a minimum 30 days jail for a domestic violence conviction. In addition, judges in most counties may require the defendant to attend a 52-week domestic batterers class.

 

An accuser may make a false allegation of domestic violence out of anger or jealousy or to gain leverage in divorce or child custody proceedings. Sometimes, what looks to the police as domestic violence was the arrested person having acted in self-defense during a mutual confrontation. Whatever the situation, your attorney should thoroughly investigate the facts in support of your side of the story.

 

California prostitution law under Penal Code §647(b) PC prohibits engaging in the act of prostitution, offering to engage in a sexual act (known as solicitation), and agreeing to engage in a sexual act. Today's California prostitution laws allow for arrest of the following:

 

The Customer, known as "John"

The middleman, otherwise known as a "Pimp," if he or she (1) arranges or participates in soliciting the agreement, or (2) procures the prostitute under Penal Code §266h and/or §266i.

To obtain a conviction in a prostitution case, the prosecutor must prove one of the followings:

 

One of the parties solicited the other for an act of prostitution

The parties agreed to engage in an act of prostitution

The parties actually engaged in an act of prostitution

Officers commonly make prostitution arrests through undercover operations that include the following:

 

Investigating internet websites that advertise as "escort" services. Escort services are legal so long as offers of sex are not made or solicited as part of those services. Occasionally, officers post as "Johns" responding to online advertisements for "call girls," "escorts," or girls just "looking to have fun."

Targeting online personal profile ads, such as those on erotica-craigslist.org, for illegal sexual activities.

Targeting owners and operators of massage parlors and escort services with regular raids and stings.

Setting up roadside sting operations involving female undercover police officers scantily clad and attempting to lure drivers to purchase sex.

Prostitution, solicitation, and agreeing to engage in an act of prostitution under Penal Code §647(b) PC are all misdemeanor offenses. If convicted, you face up to six months and/or up to $1,000 in fines. Prostitution and solicitation are also "priorable" offenses that enhance the punishment for any subsequent offense that you commit. If you are convicted for your second prostitution or solicitation offense, the judge can sentence you to a minimum of 45 days in county jail. If you are convicted of a third prostitution or solicitation offense, the judge can sentence you to a minimum of 90 days in county jail. In addition to these penalties, if you committed the offense while using a car and within 1,000 feet of a residence, the court may suspend your driver's license for up to 30 days or issue you a restricted license for up to six months. The government may also seize and forfeit your vehicle.

 

Under Penal Code §266h, you are guilty of "pimping" if you:

 

"Solicit" prostitution—that is, find customers for a prostitute and collect from that customer a fee or some or all of the prostitute's pay

Collect some or all of the prostitute's pay even though you played no part in finding the customer.

Under Penal Code §266i, you are guilty of "pandering" if you "procure"—that is, transport, provide, or make available—an individual for purpose of prostitution by encouraging or persuading that individual to become or remain a prostitute.

 

If convicted of either Penal Code §266h or §266i, you face three, four, or six years in the California State prison and a maximum $10,000 fine. In addition, you must register as a sex offender if the pimping and pandering involved a minor.

 

Entrapment is a common legal defense to solicitation, prostitution, pimping, and pandering. Under the theory of entrapment, "government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct.

 

When the idea of pimping or pandering was suggested to you by an undercover decoy officer, your criminal defense attorney should explore entrapment as a potential defense.

 

A recording of the conversations between the undercover police officer and the accused supplies proof of an agreement to engage in an act of prostitution. The absence of this recording raises red flags for jurors. If the officer was wired, why did she not record the conversation for evidence? Was the officer lying or exaggerating? Without hearing the conversation exchanged, jurors are reluctant to convict on a prostitution or solicitation charge.

 

This defense applies not so much to the evidence that is presented but the evidence that is lacking. There might not have been a clear and definite agreement to engage in sex in exchange for money or other consideration. For example, if the accused has no money on him at the time of arrest, the prosecution may have a difficult time establishing a specific intent to engage in an act of prostitution.

 

Under Penal Code Section 261, rape is nonconsensual intercourse accomplished by means of threat, force, or fraud. In order to prove that you raped another person, the prosecutor has to prove the following four facts or "elements" of the crime:

 

that you engaged in sexual intercourse with another person (any penetration will suffice no matter how slight)

that you were not married to the other person at the time (rape of a spouse is a separate crime known as "Spousal Rape")

that the intercourse was "against the will" of the person or without that person's consent, and

that you accomplished the act by one of the means listed above.

A person "consents" to sexual intercourse when he or she engages in sexual intercourse voluntarily and with knowledge of the nature of the sexual act. The fact that the alleged rapist and victim were or had been dating does not in and of itself constitute consent. Furthermore, the fact that the alleged victim initially consented to and participated in sexual intercourse does not bar him/her from withdrawing that consent.

 

To prove rape, the government need not establish that the alleged victim tried to resist the act. However, an alleged victim's lack of resistance to the sexual act is relevant to whether the defendant believed that he was engaging in consensual sexual intercourse.

 

If convicted of rape, you face any or all of the following penalties:

 

Formal probation if the rape did not involve force or violence

Three, six, or eight years in California State Prison

A possible additional three to five years in State Prison if the victim sustained great bodily injury

A maximum fine of $10,000

Registration as a "sex offender", and

A possible strike pursuant to California's Three Strike's Law.

Statutory Rape

"Statutory Rape" under Penal Code Section 261.5 is unlawful sex with a person under the age of 18. To prove statutory rape, the prosecutor must establish the following "elements" of the crime:

 

that a male and female engaged in an act of sexual intercourse (sexual intercourse is any amount of penetration)

that the persons involved in the act were not married to each other at the time, and

the alleged victim was under 18 at the time of the offense.

It is important to note that statutory rape is a strict liability offense. This means that neither the victim's consent to the sexual act nor your lack of knowledge of the victim's age is relevant to proving the crime.

 

The age of the parties is critical to sentencing. If the offender is no more than three years older than the alleged victim, the offense is a misdemeanor. If the offender is more than three years older than the alleged victim, the offense may be charged as a misdemeanor or felony depending on the specifics of the case and the offender's criminal history. Misdemeanor penalties under California's statutory rape law include informal probation, a maximum one-year county jail sentence, and a maximum fine of $1,000. Felony penalties for statutory rape include probation, between 16 months and 4 years in state prison, and a maximum fine of $10,000.

 

Lewd Acts on a Minor under Penal Code Section 288 is unlawful touching of a child for sexual purposes. To convict you of a 288 PC offense, the prosecutor has to prove the following "elements":

 

that you willfully touched any part of a child's body or that you willfully caused a child to touch his/her own body, your body, or another person's body, and

that you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of you or the child, and

that the child was under the age of 14 OR that the child was 14 or 15 years old and at least ten years younger than you.

Note that a mistaken belief in the child's age is no defense to a 288 PC charge. Nor is the child's consent to the alleged activity a defense, as under California law minors are incapable of giving consent.

 

The penalties for committing a 288 PC offense vary depending on the age of the child, the specific facts of the case, and the offender's criminal history. If the alleged victim was under the age of 14, the offense is a felony. If the alleged victim was 14 or 15 years old and at least ten years younger than the offender, then the offense can be charged as either a misdemeanor or a felony.

 

Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine. Felony charges subject you to one to eight years in state prison and a maximum $10,000 fine. For either a misdemeanor or a felony under 288PC, you face the following additional penalties: registration as a sex offender; requirement that you pay for any medical or psychological treatment that the minor incurred as a result of the offense; and an additional and consecutive five-year state prison sentence if the minor suffered great bodily injury because you used force or violence during the offense.

 

Burglary under Penal Code Section 459 PC is entering a structure with the intent

 

to commit a felony therein. To convict you of 459 PC burglary, the prosecutor must prove:

 

that you entered a building or other specified enclosure, and

that at the time you entered, you had the intent to steal or commit another felony.

Note that there is no requirement that you forcefully enter the structure. All that is required is that you entered a building or other specified enclosure with the intent of committing a felony inside.

 

There are two categories of burglary—first degree or residential burglary and second degree or commercial burglary. You commit first degree burglary if you burgle any inhabited dwelling. Second degree burglary encompasses everything else including shoplifting offenses under Penal Code Section 484. First degree burglary is a felony. Second degree burglary may be prosecuted as either a felony or a misdemeanor depending on the circumstances of the case and your criminal history.

 

If you are convicted of first degree residential burglary, you face up to six years in state prison and a maximum fine of $10,000. If you are convicted of second degree burglary as a felony, you face up to three years in state prison and a maximum fine of $10,000. If you are convicted of second-degree burglary as a misdemeanor, you face up to one year in county jail and a maximum fine of $1,000.

 

Although the penalties for burglary are harsh, prosecutors frequently agree to settle burglary cases for lesser charges because of legal technicalities and difficulties of proof.

 

Under Penal Code Section 459, you have committed auto burglary if you enter a locked automobile or its trunk with the intent to steal property contained in the car or commit any other felony inside the car.

 

Auto-burglary is characterized as second-degree burglary which means that depending on the circumstances of the offense and/or your criminal history you could be charged with either a misdemeanor or a felony. If you are convicted of a California auto burglary as a misdemeanor, you face up to one year in county jail. If you are convicted of California auto burglary as a felony, you face up to three years in state prison.

 

As with residential and commercial burglary, a conviction on auto burglary hinges on technicalities. This means that the prosecutor may agree to settle the case for a lesser charge if there are difficulties of proof.

 

If you enter a locked automobile or its trunk with the specific intent to steal the car or to permanently deprive the owner of possession and ownership of the car, then you can be charged with a Grand Theft Auto (GTA) under California Penal Code Section 487(d)(1).

 

A GTA is prosecuted as either a felony or a misdemeanor depending on the circumstances of the crime and your criminal history. If convicted of GTA as a misdemeanor, you face up to one year in county jail. If convicted of GTA as a felony, you face up to four years in state prison and $10,000 in fines. If the car's value was over $65,000, you will be subject to an additional and consecutive prison sentence of one year. If the car was valued more than $200,000, you face an additional and consecutive two-year state prison sentence.

 

In order to convict you of robbery under Penal Code Section 211, the prosecutor must prove the following elements of the crime:

 

you took property that did not belong to you

from another person's possession or immediate presence

against that person's will

using force or threat of force

with intent to deprive the owner of the property permanently or for an extended period of time such that the owner would be deprived of the value or enjoyment of the property.

Robbery is what is known as a continuing offense, which means that there is no requirement that the actual crime be completed. So long as you commit all of the above elements and in whatever order, you are guilty of robbery.

 

Robbery is always prosecuted as a felony. The length of your sentence, however, depends on whether you are convicted of robbery in the first degree or robbery in the second degree.

 

Robbery in the first degree is robbery of a driver or passenger of any type of commercial vehicle, of an "inhabited" home, or of people who are using or have just finished using an automated teller machine (ATM). Any other circumstances fall under robbery in the second degree. If convicted of first degree robbery, you face up to nine years in state prison. If convicted of second degree robbery, you face up to five years in state prison.

 

There are also a variety of sentencing enhancements that may apply to your robbery conviction. If during the commission of the robbery you caused the victim to suffer great bodily injury, you may face a three to six-year prison term in addition and consecutive to the sentence that you received for your underlying robbery conviction. If the government proves that you committed the robbery for the benefit of, at the direction of, or in association with any criminal street gang, you may face a ten year prison sentence in addition and consecutive to the penalties for your underlying robbery conviction. If you fired a gun in the commission of the robbery, you may face twenty years in state prison in addition and consecutive to your robbery penalties.

 

In addition to the above penalties, a conviction for robbery will result in a "strike" on your criminal record pursuant to California's Three-Strikes Law (For more information, See Chapter 10: Violent Crimes and the Three Strikes law).

 

California Penal Code Section 487 defines "Grand Theft" as the unlawful taking of another's property valued above $950. If the value of the property is below $950, generally only a penal code 484 petty theft can be charged (see below).

 

A grand theft may be accomplished by the following means:

 

Larceny--the unlawful physical carrying away of another's property

Embezzlement—unlawfully taking something that has been entrusted to you

Trick—deceiving another into turning over to you possession of the property

False pretenses—making false representations to defraud another out of possession and ownership of the property.

A California Penal Code 487 PC "grand theft" may be filed as either a misdemeanor or a felony depending on the circumstances of your case and your criminal history. If you are convicted of grand theft as a misdemeanor, you face up to one year in county jail. If you are convicted of grand theft as a felony, you face up to three years in state prison. You may also receive the following additional and consecutive state prison sentences:

 

One year if the amount of the property was worth more than $65,000

Two years if the amount was worth more than $200,000

Three years if the amount was worth more than $1,300,000, or

Four years if the amount was worth more than $3,200,000.

Petty Theft

Petty theft is the unlawful taking of another's property valued at $950 or less. Like grand theft, petty theft can be committed by means of larceny, trick, embezzlement, or false pretenses.

 

Under California Penal Code Sections 484 and 488, the penalties for petty theft include a maximum of three years of informal probation, up to six months in a county jail, and/or a maximum of $1,000 fine. However, if the petty theft offense is your first petty theft charge, and the value of the asset that you allegedly took was $50 or less, then your attorney may be able to convince the prosecutor to reduce the charge to an infraction. Petty theft as an infraction subjects you to a maximum $250 fine. If the value of the item exceeded $50, you may be able to participate in a diversion program.

 

Under California Code Section 666 ("Petty Theft with a Prior"), if you have suffered a prior theft-related conviction for which you were incarcerated, your current conviction for petty theft subjects you to a maximum one-year county jail if the petty theft offense was filed as a misdemeanor, and 16 months or up to three years in California State Prison if the petty theft offense was filed as a felony. Also note that Petty theft is considered a "crime of moral turpitude" and as such poses immigration problems for aliens.