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What is a Criminal Threat in California?

criminal threatUnder California law, it is not always necessary to actually complete a criminal activity or cause physical injury to be found guilty of a crime.  Sometimes, merely saying or writing words can be enough to constitute criminal conduct.  For example, California Penal Code 422 PC outlaws “criminal threats.”  Charges of criminal threats can be surprisingly serious, though, and can mean up to four years in state prison if convicted.  Furthermore, the time in prison increases if a deadly weapon was involved in the threat.  Prosecutors can choose to file charges as misdemeanors or felonies, and a conviction for felony criminal threat will constitute a “strike” under California’s Three Strikes law.

In order to convict a person of criminal threat, a prosecutor must prove the following elements:

  • You threatened to kill or harm someone either verbally, in writing, or via some form of electronic communication;
  • The threat was specific and unequivocal;
  • The victim of the threat suffered actual, reasonable, and sustained fear for his own safety or the safety of his family as a result of the threat.

The prosecutor does NOT have to prove that you were capable of actually carrying out the threat or that you had the intention to actually carry out the threat.  In fact, conditional or completely empty threats can qualify as criminal conduct as long as the prosecutor sufficiently shows you caused real and reasonable fear in the victim of the threat.

Criminal threats may arise in a number of situations and sometimes prosecutors file charges when the threat did not actually constitute a crime.  For example, you can defend criminal threat charges based on the following factors:

  • The threat was ambiguous or vague and not for a specific type of harm.
  • You only made a gesture and did not speak, write, or otherwise convey the threat by electronic device.
  • The victim was not actually in fear.
  • The victim’s alleged fear for his or his family’s safety was not reasonable in the situation.
  • The victim’s fear was momentary or fleeting.

Electronic devices include cell phones, computers, fax machines, video recorders, among others.  New cases have been arising in which people are charged with making criminal threats for comments they posted on social media, such as Facebook or Twitter.  You may make an online comment in jest or as a completely empty threat.  However, if a victim reports to police that the comment caused them actual fear for their safety, you may find yourself facing criminal threat charges and potential jail time.

 

 

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California Gang Crime Laws

gang memberIn the mid-1980’s, California legislators responded to the rapid increase in gang violence throughout the state.  From 1986 to 1987, statistics showed an 80% increase in gang-related homicides throughout the state, with 200 deaths in the first half of 1987 alone.  In an attempt to remedy the “state of crisis” regarding gang violence in California, legislators criminalized gang activity and association through the California Street Terrorism Enforcement and Prevention Act, which became California Penal Code 186.20-186.33.  Suddenly, people associated with one of the over 600 operative gangs in California faced the possibility of criminal charges.  Though the government recognized that people do have the constitutional right to associate with others who have similar beliefs, it believed Californians also had a right to be free from fear, intimidation, and physical violence caused by street gangs.  However, there is often a fine line separating legal association or unlawful gang association, therefore it is important for citizens to understand the gang laws in California.

186.22(a): This law makes it illegal to promote or assist in any criminal activity for the benefit of a gang.  However, this law criminalizes any type of participation in a street gang when you have the knowledge that members of the gang have been involved with criminal activity.  If you are charged with mere association, the prosecutor will have to prove that you actually knew of the gang’s past crimes.

186.22(b):  This is a sentencing enhancement used for gang-related crimes.  If you are charged with a felony and the prosecutors believe it was committed for the benefit of a gang, they can use this statute to add mandatory jail time to the sentence for the underlying felony.  This could add two to fifteen years in prison to any sentence you would otherwise receive if convicted.

186.26: This section makes it a crime to recruit or solicit others to participate in criminal gang activity, and to use threats of physical violence in order to coerce crimes that benefit a gang.  This charge may result in 16 months to three years in prison, with an additional three years added if the victim of the coercion was a minor.

If a person is convicted of any of the above offenses, he or she will have to abide by strict registration requirements with law enforcement for up to five years following the offense or end of prison sentence.  A conviction for gang-related activity can mean loss of your freedom and can have a significantly negative impact on your life.

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California Embezzlement FAQs

What is embezzlement?

embezzlement Embezzlement is one of many crimes considered to be “white collar,” which means they are nonviolent and financially motivated.  Nonviolent does not mean these white collar crimes are victimless, however, as embezzlement can cost many people their life savings and leave them in financial ruin.  Embezzlement refers to one person taking another person’s money or property for themselves.  The main difference between embezzlement and theft is that someone charged with embezzlement had been given legal access to the money or property, but not legal ownership, and they decided to take it for themselves permanently.  This means a person who embezzles violates a position of trust by taking the property.

What are examples of embezzlement?

Embezzlement may happen in many situations and may involve a small or large amount of money or property.  Some examples of embezzlement include:

  • A bank teller or store cashier taking money from a till or cash register they have permission to operate.
  • An investment advisor or broker spending client money meant for investments for his own purposes.
  • An employee embezzling corporate funds through elaborate and sophisticated schemes involving falsification of books and records.
  • A family member who is caring for a relative taking money from that relative’s accounts.
  • Ponzi schemes that may defraud of numerous investors from hundreds of thousands of dollars.

How is embezzlement charged and punished?

Embezzlement may be investigated and charged on the state or federal level, under either the California Penal Code 503 PC or the United States Code.

The possible sentence for embezzlement depends largely on the circumstances of your individual case, specifically how much money or property was allegedly taken and the identity and nature of the alleged victim.  For instance, under California law, if the amount in question stolen is less than $950, a defendant may face a fine up to $1,000 and/or up to one year in jail.  If the value is greater than $950, it will be considered grand theft and a court may sentence a fine up to $10,000 and/or up to three years in prison.  In addition, the penalties may be enhanced if the alleged victim was a dependent person or a senior citizen.

Federal penalties for embezzling under $1,000 can include a maximum of one year in prison and/or a $100,000 fine.  For amounts greater than $1,000, a defendant may face up to ten years in a federal prison and a fine of $250,000 or the amount stolen, whichever is greater.  As you can see, embezzlement is a serious offense with possibly sever consequences.

 

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Information Regarding California Gun Laws

gun controlThe right to bear arms is set out in the Second Amendment of the United States Constitution and has become a hot-button issue over the course of the past several years.  In light of the repeated gun violence in our country, the debate regarding whether current gun laws are sufficient has heated up significantly.  Though the Constitution does provide the right to bear arms, it does not mean every American has the right to own a gun or carry a gun with them wherever they go.

Every state has different laws regarding guns.  California gun laws first address which state residents may or may not own a gun.  The first step to owning a gun is to apply for the proper license.  Officials maintain that carrying a gun is a privilege, not a right.  Therefore, in order for the license to be granted, the applicant must demonstrate the following:

  • They are over the age of eighteen years.
  • They have good moral character.
  • They can show good cause for receiving a gun license.
  • They have completed an acceptable course of gun training, including gun safety and the limits of gun laws, up to sixteen hours.

California is the only state to require a showing of good moral character.  This can be accomplished by showing that you have not been convicted of a crime of moral turpitude in the past ten years, that you have no alcohol or drug abuse history, and that you have not received a dishonorable discharge from any branch of the military.  Just a few examples of good cause for owning a firearm include threats to your family, you work in a field in which you may encounter violent persons or persons suffering from addiction, or in which you carry large sums of money.

Just because you are allowed to purchase a firearm does not mean you can take it anywhere you want.  Some examples of locations in which guns are generally prohibited include:

  • School zones
  • Picket lines
  • Polling places
  • Government or public property, buildings, or meetings
  • Land owned by the California Parks System (with certain exceptions for hunters)
  • Any public transit facility or vehicle

Furthermore, California law prohibits anyone from carrying a gun openly in public.  Additionally, you cannot carry a concealed weapon without the proper conceal and carry permit.  You are welcome to exercise your constitutional right to carry a firearm in your own home, in a business that your own, or on other private property.

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Capital Murder in California

gun crimesThe most serious crime under California law is capital murder.  Capital murder is first-degree murder with special circumstances that elevates the crime even further.  Capital murder may be punished by either life in prison without the possibility of parole, or the death penalty, which entails execution by either an intravenous lethal injection or inhalation of a lethal dose of gas.  For this reason, facing capital murder charges is terrifying for a defendant.  There are currently 741 offenders on California’s death row awaiting execution, including 20 women.

In order to fully understand what constitutes capital murder, we must first look at the definition of first-degree murder in California.  First-degree murder includes killing in a willful, deliberate, and premeditated manner or committing a specified felony that results in a logically related death (felony-murder rule).  First-degree murder is punishable by 25 years to life in state prison.  Additionally, California Penal Code 190.2 PC sets out numerous different situations in which first-degree murder may escalate into a capital murder charge.  These situations include:

  • Murdering for financial gain
  • The defendant has previous convictions for 1st or 2nd degree murder
  • Committing murder by way of explosives or destructive devices hidden in a building or sent through the mail or delivery
  • Committing murder to avoid lawful arrest or escape from custody
  • Intentional killing of a peace officer, law enforcement officer, agent, or firefighter
  • Intentional murder for the benefit of a street gang.
  • Felony-murders arising from certain specified felonies.
  • Intentional killing of a current or former prosecutor, judge, government official, or juror to prevent the performance of that person’s official duties
  • Intentional killing of a crime witness to prevent their testimony in court
  • The killing was especially heinous, atrocious, or cruel, manifesting exceptional depravity; a conscienceless or pitiless crime.
  • A killing by means of lying in wait.
  • A hate crime, meaning the victim was killed because of his or her race, color, religion, nationality, or country of origin.
  • The murder involved the infliction of torture.
  • Killing by poison.
  • Intentional drive-by shooting.

Many defendants facing capital murder decide to plead guilty in order to avoid the death penalty and instead receive a sentence of life in prison, sometimes even with the possibility of parole.  However, defendants who are innocent usually proceed to trial, literally putting their lives into the hands of a jury.  It is absolutely imperative that you have an experienced criminal lawyer defending you in a capital murder case to avoid wrongful conviction.

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The Importance of Forensic Labs in DUI Defense

forensic labDUI Defense attorneys have several strategies for defending DUI charges, depending on the specific circumstances surrounding each case.  There are many different stages of an arrest and/or DUI charge during which law enforcement or prosecutors can make mistakes.  An experienced DUI defense attorney knows how to discover these mistakes and use them to create holes in a prosecutor’s case against a defendant.

One of the most crucial stages of a DUI case is the processing of blood alcohol tests.  Because alcohol is metabolized rather quickly, often the only concrete evidence of intoxication that prosecutors have is the blood alcohol test results.  Blood alcohol levels can be tested via a breathalyzer test, usually at the scene of the stop prior to an arrest, or by taking a blood sample, usually at the station during the booking process.  A breathalyzer requires the suspected drunk driver to blow into a device, and the device estimates the blood alcohol content by measuring the alcohol on a person’s breath.  These test results are not always accurate or reliable and devices can often malfunction.

A more accurate way to measure a person’s blood alcohol concentration is to take and analyze a blood sample.  These samples are usually analyzed by forensic laboratories.  There is usually a gap in time between the taking of a blood sample and its lab analysis, and a lot of things can go wrong during that time that can affect the results.  Some things that may go wrong include:

  • Improper storage of the blood sample
  • Contamination of the blood sample, especially with any chemical or product that contains ethyl alcohol
  • Mislabeling a blood sample, resulting in testing the wrong sample
  • Failing to properly preserve the blood sample with an anticoagulant
  • Allowing an unauthorized or unqualified technician to handle the blood sample
  • Allowing fermentation of additional alcohol in the sample due to substantial delay prior to testing
  • Not recording test results in a timely fashion

The results of a blood alcohol test can make or break a prosecutor’s case.  If there were errors in the processing of a blood sample, prosecutors usually have no other concrete evidence with which to pursue DUI charges.  For this reason, experienced DUI defense attorneys will thoroughly investigate every step of the forensic lab testing process and will conduct their own analysis of the blood sample to ensure the accuracy of results.  If there is any flaw in the test process or results, a DUI attorney will certainly use that flaw to defend the DUI charges.

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Statutes of Limitations for California Criminal Cases

sex offenseA statute of limitations is a law that specifies how the period of time during which a prosecutor may file charges following an alleged crime.  Many states have a few broad categories of criminal offenses with a set statute of limitations for each main category.  However, California has a different determined statute of limitations for almost every specified criminal offense, and therefore statute of limitations laws in California can be complex.  Additionally, California laws include many exceptions to specified statutes of limitations, which only further complicate matters.  For this reason, you should always contact a criminal defense lawyer if you have any questions or concerns regarding statutes of limitations.

According to California Penal Code Sections 799-805, the statute of limitations for a particular criminal offense varies depending on the severity of the crime.  For instance:

  • Misdemeanors = 1 year after the date of offense
  • Certain misdemeanors committed against a child under 14 = 3 years
  • Failing to register as a sex offender = 10 years
  • Production of child pornography and related offenses = 10 years
  • Crimes against dependent adults or elders = 5 years
  • Sexual crimes committed by a therapist or physician = 2 years
  • Crimes punishable by 8 or more years of imprisonment = 6 years
  • Other crimes that may be punishable by imprisonment = 3 years
  • Crimes punishable by life imprisonment, with or without parole, or death = no statute of limitations
  • Embezzlement of public money = no statute of limitations

These are only a few of the many penal code provisions setting out statutes of limitations for criminal offenses.  As you can see, the offenses can be very specific and may vary depending on the exact circumstances of a particular offense, such as type of victim or available sentence.

To only make things more complicated, California law sets out numerous exceptions.  For example, charges for sex crimes such as rape may be filed one year from the time DNA tests identify a suspect, regardless of whether the statute of limitations has run or not.  Also, the statute of limitations is paused for up to three years if the suspected defendant is out of the state.  There are also special exceptions for filing charges for sex crimes in which the victim was a minor, since those crimes are often not reported until the victim has matured.

In short, California laws regarding statutes of limitations are very nuanced and specific for each case.  However, an experienced California criminal defense attorney will know how to interpret these complex laws and apply them to your individual case.

 

 

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What Happens When Your Driver’s License is Suspended

drivers license suspensionThere are numerous reasons why your California driver’s license may be suspended by either the court or the Department of Motor Vehicles (DMV), including traffic infractions or violations of state law.  Some of these reasons include:

  • Excessive moving violations.  “Excessive” means accumulating 4 points in a year, six points in two years, or eight points in three years.
  • Being found guilty of driving under the influence of drugs or alcohol.  You could face a four month suspension for a first DUI offense and at least a year-long suspension for second DUI offense.
  • Refusing to take a drug or alcohol test.
  • Driving without insurance. California takes auto insurance requirements very seriously, and your license could be suspended for four years if you fail to provide proof of insurance.
  • Other driving-related offenses.  These include reckless driving, failure to report serious accidents, being at-fault in a fatal accident, or abandonment of a vehicle.
  • Non-driving offenses.  These include failing to appear in court, failure to pay tickets, and not paying court-mandated child support.

When your license is suspended but not physically taken from you, you must surrender your license to the DMV in person or via mail.  While your license is suspended, you cannot drive.  If you are caught driving on a suspended license, the length of your suspension will likely be increased and/or you may face up to five years in prison.  The specific penalties for driving on a suspended license vary based on the reason your license was suspended and the original length of suspension.

If you believe your license has been suspended for one of the above reasons, you should contact a criminal defense attorney as soon as possible.  Because a suspended license can make your life difficult, a criminal attorney can help you apply for a restricted license to allow you to drive to school, work, or other necessary appointments.  First-time offenders who complete a DUI program are often eligible for such restricted licenses.  A DUI attorney can also help you appeal your suspension and/or the underlying charge, and can assist you with restoration of your license when the time comes.  Restoring your license can be a complicated process with various requirements and/or fines depending on your original reason for suspension, and an experienced attorney can help guide you through the process.

California takes driver’s license suspension very seriously.  Do not risk further penalties by risking driving while your license is suspended.  Instead, contact a criminal defense lawyer to help you try to get your license back and mitigate the consequences for you.

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California Domestic Violence Offenses

domestic violenceCalifornia considers battery to be a serious crime, punishable by a fine and up to six months in jail.  If the battery causes serious bodily injury, the jail time may increase to up to one year for first offenders.  However, if the battery is considered to be domestic abuse, California law automatically makes the allegation more serious, and jail time will be up to one year no matter if you inflicted any injury on the person or not.

According to California Penal Code 243(e)(1), the penalty automatically increases if a battery of any kind takes place against:

  • Your spouse
  • Fiancé or fiancée
  • Person with whom you are cohabitating
  • The parent of your child
  • Person to whom you are or were previously engaged
  • Person with whom you have or have had a dating relationship

Battery against any of these parties is considered domestic violence, and a conviction can possibly send you to jail for one year, even if you caused no physical harm.  In addition, probation conditions may include an order to make payments to a battered women’s shelter up to $5,000, or to pay for the alleged victim’s counseling or other treatment considered to be a result of the battery.  California explains the increased severity of possible sentences for domestic abuse in the actual law, Penal Code 243(e)(4), stating domestic violence crimes “merit special consideration when imposing a sentence so as to display society’s condemnation for these crimes of violence upon victims with whom a close relationship has been formed.”

The above battery provision is not the only California law considered to be domestic violence.  Other laws include:

  • PC 273a: Child Endangerment.
  • PC 273d: Child Abuse.
  • PC 273.5: Corporal Injury.
  • PC 273.6: Violating a Restraining Order.
  • PC 368: Elder Abuse.
  • PC 422: Criminal Threats.
  • PC 646.9: Stalking.

Conviction of any of these crimes may result in fines, probation, or jail time.  The actual sentence will depend on the specific circumstances of your case, however many courts impose at least a jail sentence of 30 days, even for first time offenders.  Judges may also require you to attend a domestic batterers’ class, which can last for up to a year.  Furthermore, if any of the crimes are charged as felonies, a conviction can count as a “strike” on your record for the purposes of California’s Three Strikes Law.

Luckily, there are many defenses possible for domestic violence crimes including self-defense or false allegations.  Therefore, if you are facing any type of domestic violence charges, you should contact an experienced criminal defense attorney in California as soon as possible.

 

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Drug Possession and Intent to Sell in California

drug possessionCalifornia drug laws are divided into two major categories: possession and possession with the intent to sell.  Furthermore, laws that apply to marijuana are separated from laws regarding narcotics, or drugs deemed restricted and dangerous by the California Health and Safety Code.  The penalties for marijuana possession are generally less severe than other types of drugs.  The type of charge and potential penalties for accused drug crimes depend on the type of drug possessed, the amount of the drug, and reason why the defendant possessed the drug.

The California Health & Safety Code states it is a felony to possess narcotics such as cocaine, crack, heroin, ecstasy, ketamine, and prescription drugs that are not lawfully prescribed to the possessor.  If the defendant is accused of having a relatively small amount of a drug, he will likely be charged with possession for personal use.  Though possession for personal use is the least serious drug charge in California, penalties can still include up to three years in state prison if convicted.  Many defendants convicted of possession may qualify for the Penal Code 1000 Drug Diversion program.  This program allows judgment to be deferred while a defendant completes an extensive drug rehabilitation program.  Though rehab may sound better than prison, such programs may take from eighteen months to three years to complete to the satisfaction of the court.  The program could inhibit your ability to work a regular schedule or travel freely.

If law enforcement and/or prosecutors believe you were dealing drugs, they may charge you with possession with intent to sell.  In deciding whether a defendant had intent to sell, prosecutors will look at the amount of drugs, packaging in numerous separate baggies or bindles, and concurrent possession of scales, and weapons and/or large sums of cash.  However, often times a defendant possessed drugs for personal use yet other circumstances make it appear as if he had the intent to sell.  Possession with intent to sell is a more serious charge, and defendants convicted of this charge will not qualify for the Penal Code 1000 Drug Diversion program.  Instead, penalties can range up to four years in state prison.

Finally, in California, you can also be charged with merely being under the influence of an illegal narcotic.  A defendant does not have to possess the drug for this charge.  Though it is a misdemeanor, under the influence charges carry a mandatory minimum penalty of 90 days in county jail.  However, most offenders convicted of this charge qualify for Drug Diversion.

Our drug defense attorneys specialize in cases across southern California, including those in Los Angeles CountyOrange CountyVentura CountySan Bernardino County and San Fernando Valley. Call us at (310) 990-3639 for a free consultation. We are available 24/7 to evaluate your case and let you know how to begin the process of getting your life back on track.

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