Penal Code 242 – Battery Laws in California

The crime of battery is often confused with the crime of assault. This may be due to the frequently used term “assault and battery” which is most commonly used rather than just assault or just battery. There is a difference between the two and the following is an explanation of the difference.

The distinct difference between assault and battery is that, battery requires that the defendant have actual physical contact with the victim. Whereas with assault, you can be charged with assault even if you did not actually, physically touch the victim. The definition of battery is the willful and unlawful use of force or violence on someone else. My clients are often surprised to learn that you can be charged, and found guilty, of battery even if there was no injury or injuries. All that is required is that the victim was touched in an offensive way.

More seriously though, is if the assault does result in an injury or injuries, then the charge may be Penal Code 243(d), which is battery causing serious bodily injury. Most battery charges are misdemeanors but battery causing injury is a “wobbler”, meaning it may be filed as a misdemeanor or a felony, depending upon the severity of the injuries, the circumstances of the offense and any prior history of the defendant.

As stated above, a simple battery is a misdemeanor. The penalties may include a fine of up to $2,000.00 and up to six months in jail. The penalties for felony battery can be two, three or four years in prison.

Domestic battery and battery on a peace officer carry harsher penalties. Battery on a peace officer includes specific individuals, which are listed below:

  • Peace officer or law enforcement officers
  • Custodial officers
  • Firefighters
  • Emergency medical technicians or paramedics
  • Lifeguards
  • Security Officers
  • Custody Assistants
  • Process Servers
  • Traffic officers
  • Code Enforcement Officers
  • Animal Control Officers
  • Search and Rescue Members
  • Employee of a probation Department
  • Doctors or nurses providing emergency medical care.

Domestic battery includes the following individuals:

  • Spouse or former spouse
  • A cohabitant or former cohabitant
  • Fiancé or former fiancé
  • Someone you have or have had a dating relationship with
  • The mother or father of your child.

The penalty for domestic battery may include a $2,000.00 fine and the potential sentence of up to one year in jail. Also, anyone convicted of domestic battery will be required to attend and complete a batterer’s treatment program, which typically lasts one year.

Anyone who has been arrested for battery of any nature should immediately contact an experienced criminal defense lawyer with experience in all types of battery related charges.

 

 

 

 

 

 

California Proposition 47, Do You Qualify?

California Proposition 47 is a recently approved law, which allows many individuals who have criminal convictions, to reduce their felony conviction(s) to misdemeanor convictions. Further, it allows those who are currently being prosecuted for felonies, to have their charges reduced to misdemeanors and prosecuted as misdemeanors. It is important to note that not all felony convictions and charges are eligible and not all individuals are eligible. Below is a brief overview of Proposition 47 and who qualifies.

Simply put, the new law reduces the classification of most non-serious and non-violent crimes from wobblers or felonies to misdemeanors. Wobblers are crimes that may be prosecuted and either a misdemeanor or a felony, depending upon the circumstances. Typically, the types of crimes eligible for Prop 47 are property and drug crimes. However, individuals who have prior “disqualifying” convictions will not qualify for Prop 47. Those convictions include any felony offense, which requires Penal Code 290(c) registration or convictions under Penal Code 667(e)(2)(C), (serious, violent crimes, including murder and certain sex and gun crimes, and registered sex offenders). The following are some of the crimes eligible for reduction of penalties under Proposition 47:

  • Grand Theft. The new measure limits when theft of property of $950.00 or less can be charged as grand theft. Under previous law, grand theft was a wobbler, depending upon the property involved and the defendant’s prior record.
  • Shoplifting. Under the new law, shoplifting property worth $950.00 or less will always be prosecuted as a misdemeanor and cannot be charged as a burglary as previously allowed.
  • Receiving Stolen Property. Under the previous law, receiving stolen property was a wobbler. Under the new law, if the stolen property received is worth $950.00 or less, it will always be prosecuted as a misdemeanor and not a wobbler.
  • Drug Possession. Under the previous law, possession of illegal drugs, for personal use, could be prosecuted as a misdemeanor, a wobbler, or a felony, depending upon the amount and type of drug. Prop 47 requires that personal possession crimes always be prosecuted as misdemeanors. Possession of marijuana will remain either an infraction or a misdemeanor.

Proposition 47 will cause changes in penalties for those convictions that qualify. The result will mean a reduction in the length of the sentences, jail time and community supervision. Very few individuals ever received state prison sentences for these types of crimes under the old law, only those with prior serious or violent convictions. However, under Prop 47, no one with the qualifying convictions will receive a state prison sentence.

Probably one of the most talked about results of Prop 47 is the resentencing of previous felony convictions, which affects those individuals currently in custody, as well as those who are out of custody. Quickly and simply put, those individuals who have been convicted of a felony (a qualifying felony) and are currently serving time for that conviction, may apply to have their felony conviction/sentence reduced to a misdemeanor and resentenced. For those convicted of a qualifying felony and have completed their sentence, they may apply to the Court to have their convicted reduced to a misdemeanor.

As discussed above, no one who has been convicted of those serious, violent, sex and gun related crimes applicable, may be resentenced or have their felony reduced to a misdemeanor. Further, Prop 47 says that the court is not required to resentence an individual, even if they qualify, if the court makes a determination that the individual will likely commit one of the specified severe crimes. Also, individuals who have been resentenced are placed on one-year state parole, unless the court removes the requirement.

The Orange County Superior Court has established a courtroom specifically designated to handle Proposition 47 cases. The procedures vary depending upon the status of your felony charge or conviction.

Anyone who feels that they may qualify for Prop 47 in Orange County should contact a Criminal Defense Lawyer who is familiar with the new Proposition 47 procedures. And any family member who has a loved one in custody on a felony conviction should consult with a good criminal defense attorney to find out if their loved one qualifies for Prop 47.

 

 

 

 

 

 

Identity Theft

Identity theft is defined in Penal Code 530.5 and is described as follows:

  • The willful taking of someone’s personal identity information for the purpose of securing credit, money, services or property, in their name for your benefit, without their consent.

 

  • If you take and keep another person’s identity, intending to use that information to commit fraud, you are guilty of the crime of identity theft. Even if you never use the information you obtained, the fact that you stole the identity of another, with the intent to use it, is a crime.

 

  • If you give, or sell the personal information of someone to another person, with the intent to commit a crime, you can be charged and found guilty of identity theft.

 

Orange County law enforcement and the Office of the District Attorney have special units specifically dedicated to investigating, arresting and prosecuting individuals who have been accused of identity theft. They focus solely on finding and prosecuting such individuals. The District Attorney can and usually does, add any additional charges they deem applicable. These charges are usually theft related charges such as embezzlement, fraud, grand theft, petty theft forgery and elder abuse. The type of theft charge depends upon the amount of money involved. The value, which separates petty theft from grand theft, is $950.00. Under that amount will result in a petty theft charge; over that amount will result in a charge of grand theft.

 

Is Identity Theft a felony or misdemeanor? The answer is that it depends. This type of crime is a “wobbler” meaning the District Attorney can decide whether it is charged as a misdemeanor or a felony. When making that determination, the prosecution looks at several things, including your criminal record and the details surrounding the theft itself. In other words, how you obtained the information as well as what you used the information for will be factors in how the crime is charged.

 

So are there any defenses to identity theft? Yes. If a person has obtained the personal information/identity of another but never intended to use it for fraud, or any other reason, is not guilty of identity theft. The prosecution must prove intent in order to successfully convict someone of this crime. As indicated above, this type of charge typically has other charges associated with it, which increases the potential penalties.

 

If the evidence is overwhelmingly in favor of the prosecution, a good, experienced criminal defense lawyer who has experience with defending this type of crime can help to mitigate the seriousness of the conviction and ultimate penalties associated with the charge. Working to get some of the charges dismissed and reduced could make the difference in jail and house arrest or, even straight probation.

 

If you or a loved one has been arrested for identity theft, it is important to immediately contact an experienced criminal defense attorney to ensure that your rights are protected. In some situations, early intervention by an aggressive defense attorney can be extremely effective in minimizing the severity of the charges.

 

As a Criminal Defense Lawyer, practicing law for more than 20 years in Orange County California, I am often asked about the law as it pertains to legally carrying a concealed weapon.   I have represented hundreds of individuals who have been charged with illegally carrying a concealed weapon.  While it is legal to buy, carry, and conceal a weapon in California, there are strict rules in doing so and strict rules as to who may obtain a license to do so.  Here is some information pertaining to applying for a license to carry a concealed weapon (CCW) and an explanation of who may and may not carry a concealed weapon.

California Penal Code sections 26150 and 26155 provides that a license to carry a pistol, revolver, or other firearm capable of being concealed, may be issued to an individual but,  a statewide standard application form must be completed and approved.

Who May be Issued a License:

A license for CCW may be issued to any person who is of good moral character, who has completed a course of training, and where good cause exists for issuance of the CCW license.  Anyone applying for a license will be fingerprinted and a check of all state and federal records will be conducted.  The purpose of this is to determine if the person applying is eligible to possess a firearm.  There are individuals who are prohibited from possessing firearms and thus denied the application for a CCW license.

Format of CCW License:

1.  A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person.

2.  Where the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in the county a pistol, revolver, or other firearm capable of being concealed upon the person.

Training Required:

Penal Code sections 26150 and 26155 require that any new license applicant must complete a training course.  The training course will be specified by the licensing authority.

Some jurisdictions may require psychological testing on the initial application.

Completing an application does not guarantee the issuance of a CCW license.  Whether or not the application is granted is strictly at the discretion of the license authority.

Who is Ineligible to CCW:

The questions on the application form are meant to help the licensing authority determine whether or not the application will be granted.  An example of some of these questions are as follows:

1.  Are you now, or have you been, a party to a lawsuit in the last five years.

2.  Are you now, or have you been, subject to a restraining order.

3.  Are you on probation or parole from any state for conviction of any offense.

Any conviction for a felony bars the individual from owing, carrying or otherwise possession a firearm, and would thus bar the individual from obtaining a license for CCW.

False Statements on Application Form:

Any person who files an application with false information contained in the application is guilty of a misdemeanor.

Any person who makes a false statement regarding any of the following, on the application, is guilty of a felony:

1.  The denial or revocation of a license, or the denial of an amendment to a license, issued pursuant to this article.

2.  A criminal conviction.

3.  A finding of not guilty by reason of insanity.

4.  The use of a controlled substance

5.  A dishonorable discharge from military service.

6.  A commitment to a mental institution.

7.  A renunciation of United States citizenship.

CCW License Conditions and Restrictions:

There are conditions and restrictions that go along with CCW licensing.  Here are just a few:

The licensee shall not, when carrying a concealed weapon:

  • Consume any alcoholic beverage.
  • Be in a place having a primary purpose of dispensing alcoholic beverages for on-site consumption.
  • Be under the influence of any medication or drug, whether prescribed or not.
  • Refuse to show the license or surrender the concealed weapon to any peace officer upon demand.
  • Impede any peace officer in the performance of his/her duties.
  • Present himself/herself as a peace officer to any person unless he/she is, in fact, a peace officer as defined by California law.
  • Unjustifiably display a concealed weapon.
  • Carry a concealed weapon not listed on the permit.
  • Carry a concealed weapon at times or circumstances other than those specified in the permit.

This is an overview of some of the requirements, responsibilities and laws associated with carrying a concealed weapon.  The application itself is extensive and anyone who is applying for a license to carry a concealed weapon is responsible for making sure that there are completely informed before doing so.  Also, anyone who carries a concealed weapon must have a license to do so or face criminal charges if caught doing so without a license.

If you, or someone you know, has been arrested for carrying a concealed weapon without a license, you should immediately seek the advice and assistance of an experienced Criminal Defense Attorney who has experience in defending felony gun charges in Orange County, California.

White collar crime involves illegal activity that is done for the sole purpose of financial gain to the individual being accused and typically takes place in a businesses or corporation. It doesn’t matter whether the business is a small, “mom and pop” business or a large corporation.   Any theft of funds, fraud, etc., is a crime and falls under the category of “White Collar Crime”.   Here are some examples and explanations of white-collar crimes:

Embezzlement: Embezzlement is one of the most common, and most often charged, white-collar crimes. Basically it is a theft involving an employee stealing from their employer. The accused is typically a person who has been placed in a position of trust, has access to money coming into and going out of the business and, has a certain amount of control. It is a premeditated act, which requires a degree of sophistication, planning and covering up. It usually involves the theft of money, taken in small amounts, over a period of time. Embezzlement can also involve the taking of property or services. It may involve only one person or, there may be many employees involved. Regardless, embezzlement is a very serious crime and, can involve the FBI, depending upon the circumstances. Penalties, punishment and fines are determined based upon the amount of the theft itself.

Money Laundering and Extortion: Money laundering is the act to conceal money, which was illegally obtained and then “laundered” through a business with the intent to hide where the money has come from. Extorting money from someone involves intimidation or threats. This may involve money or property.

Fraud: Fraud can come in many forms. But basically, it is described as deceiving another or “defrauding” another with the intention of personal gain or, it can be to damage another person. This can include the taking of money or property or, may involve lying in an effort to benefit personally.   Fraud includes:

  • Tax Fraud
  • Bankruptcy Fraud
  • Insurance Fraud
  • Bank Fraud
  • Identity Theft
  • Counterfeiting
  • Forgery
  • Embezzlement

Internet Crimes: Internet crime is an extremely broad white-collar crime category. It may involve identity theft, offensive content, harassment, phishing and others. But, due to it’s nature, may be a result of virus or Internet hacking. Someone who is being charged with an Internet crime may actually be a victim himself or herself. The individual may have had absolutely no knowledge of what was going on. Internet hackers or Internet criminals are very internet-savvy and are able to do things that most people would never have thought of.

Once an employer believes that one or more of their employees has committed a crime, they will begin an investigation.   If the investigation reveals something questionable, it may be turned over to the police department. In certain situations, the investigation could involve the FBI or the IRS. These types of investigations can take months and even years to be charged.

Anyone being charged or investigated for a white-collar crime should seek the advice and assistance of an Orange County Criminal Defense Lawyer, who has experience with defending white-collar crimes.

 

 

 

 

 

 

 

A new phone app called “Yik Yak” has become extremely popular among teens over the last several months. The app was originally created and meant for college-age students as a virtual campus bulletin board. It is a location-based app, which allows people to interact, “anonymously” with those around them. Although meant for college-age students and adults, younger kids, in middle school and high school can download the app fairly easily. This has become a new, increasingly serious problem as the app has been used for cyber-bullying and threats. Creators of the app say whenever a threat is posted to the site, it immediately begins working with law enforcement agencies in the area to track down the suspect.

 

The attraction for teens to this app is that it is “anonymous” and therefore, teens feel safe in posting whatever they want without the fear of being found out, or caught. But, in this situation, it is not truly anonymous. Anything you post on line can be traced and, according to the police agencies, the police can find out who you are, will find out who you are and will arrest you.

 

A recent bomb scare at San Clemente High School, in Orange County California, was a result of a Yik Yak posted threat. It forced the school to shut down and required the bomb squad and bomb-sniffing dogs to be deployed to the school. The school was later safely cleared but police are still actively pursuing the person who made the threat. If police are able to trace the threat to the responsible person, that person will face felony criminal and/or terrorist threats.

 

There have been other similar threats. Recently at 19-year-old student at Indiana State was arrested for posting a shooting threat on Yik Yak. And in Long Island, a 15 year old who posted a threat on Yik Yak, threatening to blow up the school and shoot fellow students, was arrested and charged with felony terrorist threats.

 

As we know, young people make bad decisions. What may have started out as a joke to see what would happen has turned into a very serious situation, resulting in arrests and possible convictions of serious felonies. These young individuals will need the help of an experienced criminal defense attorney. A criminal defense lawyer, who has experience in handling these types of charges, as well as handling cases involving teens and young adults, is key to providing the best legal representation possible. Understanding how the mind of a teen and/or young adult works will aid in their defense. An aggressive lawyer will work hard at helping the prosecution, probation and Judge, understand the full picture of the individual and not just focus on the “crime”.

 

Being arrested and charged with a crime is serious for anyone, but it feels especially serious when it is a minor or young adult. Because teens and young adults are still naive and immature, they do things without thinking and end up making mistakes that can and may, follow them around for the rest of their lives. A good criminal defense lawyer should be focused on mitigating the consequences so that a momentary lapse in judgment does not damage the possibility of a bright future.

 

In California, current law prohibits both public and private employers from asking an applicant to disclose any information concerning an arrest or detention that did not result in a conviction. Further, as of July 1, 2014, all state and local agencies are prohibited from asking applicants to disclose information regarding criminal convictions, with some exceptions, until it has been determined that the applicant meets the minimum employment qualifications for the position.
Exceptions include: Peace Officers, Court Employees, Prosecuting Attorneys, Public Defenders, Health Officers, Child Support EE’s, Child Care Providers, IHSS Workers, Park, Playground, Rec Center EE’s and Residential Care Facility EE’s.
Recognizing that the barriers to employment for people who have criminal convictions increases unemployment and increases the risk of individuals reoffending, the Legislature has found that reducing the barriers will decrease unemployment and improve economic stability in communities.
There are approximately 10 states and 50 municipalities that have reformed their hiring process, by eliminating criminal history questions from job applications. Madison City Wisconsin will soon join the movement, in an effort to give people with a criminal background a chance at a new start. The goal is to help those who have been unreasonably embroiled in the system or whose history prevents them from attaining gainful employment. Once it is revealed that someone has a criminal conviction, they are pretty much taken out of the running and are not considered for the job they are applying for. This prevents many from being able to start over, build a new life and support their families.
The position of those who are in favor of this resolution is that, if an arrest record is not relevant to the job, then the applicant should not be forced to reveal the information. More specifically, the goal is to eliminate criminal history questions and delay any background check until a job offer is made. The resolution would not prevent prospective employers from obtaining conviction records; it would only delay the disclosure until well into the hiring process. This gives applicants a better chance of being evaluated based on their qualifications for the job.
However, even with this movement toward helping those with criminal convictions, a criminal conviction can still prevent an individual from getting a job that will allow them to support themselves, as well as a family. It is for this reason that anyone who has been arrested should seek the advice and assistance of an experienced criminal defense lawyer. Preventing a conviction after an arrest should always be the first goal of any criminal defense attorney but, in situations where a conviction is inevitable, minimizing the seriousness of the conviction such as a reduction from a felony to a misdemeanor, should be the next goal. This will not only help with prospective future employment, it reduces the fines, fees and length of probation. An aggressive, experienced attorney, familiar with the courts in which a charge is pending, can make all the difference.
Petitions for Factual Innocence and expungement of criminal conviction are still effective tools in helping to clean up your criminal record.

A grove of marijuana plants was found a few weeks ago by Orange County Parks Personnel, which they believe had been growing for quite some time. The grove was discovered very close to a “really nice residential area”, which is unusual, especially a grove this large.

According to the Orange County Sheriff’s Department, approximately 2,500 to 4,000 plants were discovered in the Canyon area of the Laguna Wilderness Park and may be worth around $5 million. The plants are reported to be in various stages of growth and it seems clear that the grove has been there, unnoticed by residences and OC Parks Personnel, for a while. Although the plants were discovered outside of city limits, residence are shocked that anyone or any group, would be so brazen as to cultivate such a large grove of marijuana in such a visible area. They are equally as shocked that it went unnoticed long enough to grow so large.

On August 15, the Orange County Sheriff’s Department began a marijuana cultivation eradication operation, which will consist of narcotics investigators hiking into the area, which is apparently very rugged, in order to pull up the plants manually. The Sheriff’s Department has also enlisted the help of an airship to lift the plants and carry them to a area nearby where they will be processed as evidence.

The Sheriff’s Department news release indicated that they do not have any suspect information but are obviously investigating all evidence and asking for the public’s help with any information on the individual or individuals involved.

The laws are very strict when it comes to cultivation, transportation and use of marijuana for medical purposes. There are strict guidelines as to how many plants you can have, even if you have a license to grow marijuana. Due to the large number of plants in this situation, it does not appear that this marijuana grove was planted, legally, for medical purposes and therefore, the individuals involved, if caught, will face very serious felony charges.

For more information, see our related marijuana sales post:

Possession for Sale of Marijuana Laws in California

St. Paul, Minn has a new bill that may someday make it’s way to California. It is called the criminal records expungement bill. The bill will allow those convicted of misdemeanors and some low-level felonies, to get their criminal records sealed.

The idea behind the new law is designed to help people go forward with their lives and help with potential jobs and housing. There are many companies who have policies against hiring people with a criminal record, even if that record is 20 years old. The mistakes people make when they are young follow them around for the rest of their lives and in many cases, prevent them from getting good jobs.

During the signing ceremony, a woman spoke of how two misdemeanor convictions, when she was 18 and 20, have derailed her getting hired with good companies. Even though she has changed her life and worked her way through college, her criminal background continues to hold her back. She earned a marketing degree but lost out on good jobs once a background check was done.

It is not benefiting society as a whole to hold people back who have worked hard to better their lives, only to be turned down due to past mistakes. While it is understandable that the are certain convictions that will and should prevent people from holding certain jobs, minor misdemeanor convictions should be expunged and/or sealed to allow those who have bettered their lives, a second chance.

St. Paul, Minn. is paving the way for other states to begin to consider doing the same. The way it would work is as follows:

Those looking to seal their records would have to first complete probation and then to go through a waiting period of two to five years, depending on the time of crime. But it’s not automatic.

After the waiting period ends a person may petition the court for expungement. The judge will also have an opportunity to hear from victims and prosecutors before ruling on whether to seal the criminal records in question.

Law enforcement agencies, prosecutors and judges will still have access to the sealed records. Companies that specialize in culling criminal records and selling them to employers for background checks would be required to removed sealed records from their databases.

There is much more to the bill but the just of it is to help people move forward past their mistakes and become good citizens within their communities. This new law does appear to have strict guidelines to protect the individual, the public and businesses, but it is definitely good news for those who will qualify and who will take advantage of the new bill. Those who have convictions that are 10, 15, 20 and even 30 years old are still being held back from reaching their full potential even though they have paid for their mistakes. This bill will help those who have been denied access to good jobs, good housing and even acceptance to graduate schools due to their past convictions.

The crime of kidnapping is defined as the use of force or fear to take a person and move him or her, a substantial distance. If convicted of kidnapping, the penalty can be up to 8 years in State Prison, or more if:

1) The victim was injured or abused;
2) If the victim was a child or;
3) if the kidnapping was done to facilitate another crime.

There are certain elements to the crime of kidnapping. They are:

(1) The kidnapper took, held, or detained another person by means of force or by instilling reasonable fear;
(2) Using that force or fear, the kidnapper moved the other person or made the other person move a substantial distance; and
(3) The other person did not consent to the movement.

Kidnapping is considered a serious Felony and is a “Strike Crime” under California’s “Three Strikes Law”. However, there are defenses to kidnapping. For example, a person is not guilty of kidnapping if he/she reasonably and actually believed that the other person consented to the movement. The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant did not believe that the other person consented to the movement.

Consent as a defense to kidnapping is discussed in more detail below. If the other person consented to go with the defendant, the defendant is not guilty of kidnapping. Consent is defined as:

(1) The person freely and voluntarily agreed to go with or be moved by the defendant;
(2) The person was aware of the movement, and
(3) The person had sufficient maturity and understanding to choose to go with the defendant.

Again, the prosecution has the burden of proving, beyond a reasonable doubt, that consent was not given. (It is important to note that consent may be withdrawn. If at first the person consented to go with the defendant but later changed their mind, the defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime outlined above.)

Other defenses may include:

1) The alleged movement was insufficient to be considered a kidnapping. As indicated above, the victim has to have been moved from one place to another but what constitutes “movement”. The movement has to have been substantial. It cannot be just a slight distance. However, there are several factors that will determine whether the movement was enough to constitute kidnapping. The actual distance moved is one factor. Also, did the movement increase the risk of harm to the victim and, was the movement enough to, or with the intent to, prevent the “kidnapper” from being caught.

2) You may have been present but, did not participate in the kidnapping; and
3) Mistake in identity.