2018 Law May Be an Opportunity to Earn a DISMISSAL of Criminal Charges

If you’ve been arrested for any crime in California, there is a law that could dramatically impact your case. I’ve been a California criminal defense lawyer for over two decades, and I’ve never seen anything that has this much potential to impact anyone charged with a crime.

On June 27, 2018 California Governor Jerry Brown signed into law Assembly Bill 1810, which went into effect immediately. (This bill created new California Penal Code section 1001.36.)

Penal Code 1001.36 allows ANY defendant charged with ANY misdemeanor or felony the chance to earn a dismissal of their case if they meet certain requirements.

To be eligible, the accused must suffer from a “mental disorder” listed in the Diagnostic and Statistical Manual of Mental Disorders, otherwise known as the “DSM”.  (The current DSM is the DSM-5).

But what is essential to understand is that alcoholism, drug addiction, PTSD, ADHD, anxiety disorder, and many others ARE listed in the DSM as treatable mental disorders!

As a criminal defense attorney, my experience has been that people that are arrested for crime suffer from one of two problems:

  • A “bad luck” problem, like being in the wrong place at the wrong time, OR
  • An alcohol problem, drug problem or other mental health problem that has contributed to the criminal charges.

California Penal Code section 1001.36 means that if a criminal defendant is alcoholic or addicted to drugs (or suffers from some other related mental health issue) and commits a crime related to their mental health issue, they have the chance to participate in either an outpatient or a residential treatment program and earn a dismissal of the charges against them.

There is much that is currently unsettled in how this law will operate, but the potential impact on criminal defendants, and the family of anyone accused of a crime, is enormous.

 

What is Diversion?

Diversion is an opportunity for someone accused of a crime to earn a dismissal of the charges against them. To understand how diversion operates, you must first recognize that in the criminal justice system, a criminal conviction only happens where there is both:

  • A guilty plea or verdict, AND
  • The person is sentenced.

If someone pleads guilty to a crime, but is never sentenced, there is NO criminal conviction.

In a case where the criminal defendant is allowed to do diversion, they enter a guilty plea to the charges, but they are NOT sentenced.

Instead of being sentenced, the judge will order them to participate in a specific program, and if they successfully complete that program, the charges against them are dismissed.  After completion of the diversion program under this new law, the arrest upon which the diversion was based shall be deemed to never have occurred!

 

Requirements Under the New Law

California Penal Code section 1001.36 will apply to both misdemeanors and felonies.  As with any law, there are certain legal requirements that must be met to get this diversion opportunity. The legal requirements are:

  • A mental disorder. Again, the DSM provides that alcoholism and drug addiction are treatable mental disorders.  But the list is much broader than that, and includes such things as anxiety disorders, bipolar disorder, ADHD or ADD, PTSD, and more.
  • The mental disorder played a significant role in the commission of the charged offense.
  • A qualified mental health expert (a psychiatrist or psychologist) offers an expert opinion that the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
  • The defendant agrees to treatment as a condition of diversion, and the judge is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
  • The defendant agrees to give up his or her right to a speedy, public trial.
  • The defendant is NOT eligible for diversion if the court finds that the defendant poses an unreasonable danger to the public if diversion is granted.

The maximum length of the diversion program is two years, and there will be regular reports to the court of the defendant’s participation in treatment.

Because this law is so new, there is much that is unknown.  There is no question that this new law will be controversial.  But as someone who has been involved in the justice system for a long time, and who knows intimately about the problems of drug addiction and alcoholism that often drive criminal cases, I can say that I’m inspired that the legislature is taking on this kind of criminal reform.

If you believe that you can benefit from this new law, I invite you to call us for a consultation with a lawyer right away.

 

California Penal Code Section 1001.36

For those who love “legal blah blah,” here is the actual language of Penal Code section 1001.36 that allows for diversion for all eligible criminal cases:

(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).

(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

(1) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.

(2) The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.

(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.

(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.

(5) The defendant agrees to comply with treatment as a condition of diversion.

(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

(c) As used in this chapter, “pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:

(1) (A) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.

(B) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.

(2) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.

(3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

(d) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:

(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.

(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.

(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.

(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:

(A) The defendant is performing unsatisfactorily in the assigned program.

(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).

(f) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(g) The defendant shall be advised that, regardless of his or her completion of diversion, both of the following apply:

(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (f), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(h) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.

(i) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

(Added by Stats. 2018, Ch. 34, Sec. 24. (AB 1810) Effective June 27, 2018.)

 

The Actual Text of AB-1810

Here is the relevant portion of AB 1810 that gave rise to the new law:

“(15)  Existing law authorizes a county to establish a pretrial diversion program for defendants who have been charged with a misdemeanor offense, with certain exceptions. Existing law also authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, defendants suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of their military service, and persons issued notices to appear for traffic violations, among others.

This bill would establish a procedure of diversion for defendants with mental disorders through which the court would be authorized to grant pretrial diversion, for a period no longer than 2 years, to a defendant suffering from a mental disorder, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, in order to allow the defendant to undergo mental health treatment. The bill would condition eligibility on, among other criteria, a court finding that the defendant’s mental disorder played a significant role in the commission of the charged offense. The bill would authorize a referral for mental health treatment to be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, as specified.

The bill would, among other things, require the court, after notice to the defendant, defense counsel, and the prosecution, to hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment program should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator, if the defendant is charged with, or is engaged in, certain criminal offenses, if the defendant is performing unsatisfactorily in diversion, or if the defendant is gravely disabled, as defined.

If the defendant has performed satisfactorily in diversion, the bill would require the court to dismiss the defendant’s criminal charges, with a record filed with the Department of Justice indicating the disposition of the case diverted, and the arrest deemed never to have occurred, and would require the court to order access to the record of the arrest restricted, except as specified.

By increasing the duties of local officials relating to diversion and the sealing of arrest records, this bill would impose a state-mandated local program.

The bill would also authorize the State Department of State Hospitals, subject to appropriation by the Legislature, to solicit proposals from, and to contract with, a county to help fund the development or expansion of the above-described pretrial diversion for individuals with serious mental disorders who may otherwise be found incompetent to stand trial and committed to the department for restoration of competency. The bill would require participants to meet specified criteria, including, among others, that they suffer from certain mental disorders and have felony charges, and that there is a significant relationship between the serious mental disorders and the charged offense or between the individual’s conditions of homelessness and the charged offense.

The bill would set forth various requirements for a county submitting a proposal for funding, including, among others, demonstrating a specified match of county funds and reporting certain program data and outcomes to the department. The bill would require the department, when evaluating a proposal, to take certain factors into consideration, and in consultation with the Council on Criminal Justice and Behavioral Health, as specified. The bill would require that patient information and certain personal identifying information reported to the department be confidential and not open to public inspection.”

If you have any questions about this new law, please do not hesitate to call us.

Misdemeanor Evading an Officer in California

Almost anyone can watch the news at some point and see a wild police chase. While extreme cases of  evading a peace officer or police officer do occur in California, most cases do not involve high speed pursuits across long distances.

 

Simply put, the State of California can convict drivers of evading a peace officer or police officer if the driver willfully attempts to flee from a law enforcement official who is pursuing the driver in a car or on a bicycle.

 

The prosecution must prove five elements of the crime of Misdemeanor Evading an officer under California State Vehicle Code 2800.1.

 

  1. The driver deliberately intended to evade the law enforcement official.
  2. The officer’s vehicle exhibited at least one red lamp on the front, which the driver either saw, or could have reasonably seen.
  3. The officer used a siren as necessary.
  4. The officer’s vehicle clearly displayed police markings
  5. An officer in uniform was operating the law enforcement vehicle.

 

police car chasing a vehicle

 

The State of California classifies violation of Vehicle Code 2800.1 as a misdemeanor for evading an officer. Related crimes include felony reckless evading under California Vehicle Code 2800.2, as well as evading an officer causing injury or death under California State Vehicle Code 2800.3.

 

Generally speaking, misdemeanor evading a police officer charges involve relatively low-risk police chases. The difference in risk becomes readily apparent, especially when compared to breaking news stories seen on nightly news stations.

The penalties for misdemeanor evading an officer include up to one year in county jail, and fines of up to $1,000. Furthermore, the vehicle used to evade the officer may be impounded for 30 days.

 

 

Examples

 

A man purchases a bag of cocaine and puts it in the glove compartment of his car. On his drive home, the man speeds through an intersection. A police officer sees him speeding and turns on his lights and sirens in an attempt to pull him over. The man, however, is terrified of being caught with drugs in his car and speeds away from the police officer.

 

A woman loses a DUI case, and loses her license to drive. However, she chooses to drive anyway in order to transport herself to and from work. On her way home from work one day, a police officer sees that one of her brake light is out. The police officer turns on his siren and lights and tries to pull the woman over. She panics and begins to weave in and out of traffic because she does not want to be convicted of driving without a license.

 

A commercial truck driver behind the wheel of a long multi-trailer rig knows the vehicle is overweight. He sees a highway patrol officer turn on his vehicle lights and begin to pursue him. The truck driver knows he may face punishment from his employer due to the vehicle’s weight, but chooses to keep driving instead of pulling over.

 

 

Defining Misdemeanor Evading an Officer in California, Vehicle Code 2800.1

 

California State Criminal Jury Instructions 2181, Evading a Peace Officer, describe the necessary elements of this crime as follows:

  • A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle
  • The defendant intended to evade the peace officer
  • While driving, the defendant willfully fled from, or tried to elude, the pursuing peace officer
    • All of the following were true:
      a.   There was at least one lit red lamp visible from the front of the officer’s vehicle
      b.    The defendant either saw, or should have reasonably seen, the lamp
      c.    The peace officer’s vehicle was sounding a siren as necessary
      d.    The peace officer’s vehicle was distinctively marked
      e.    The peace officer was wearing a distinctive uniform

 

People can also be convicted of evading an officer while fleeing from an officer riding a bicycle.

 

the scales of justice

 

Elements of the crime

 

The essential elements of the crime involve the drivers intent, the officer’s vehicle, and the officer’s uniform. Each one functions in a particular manner under California State law.

 

 

Driver Intent

 

One of the most important elements of evading an officer is the driver’s intent. The prosecution must prove that the driver evaded the police officer with specific intent.

 

“Willfully” refers to the deliberate intent of the driver.

 

Specific intent crimes require the prosecution to prove that the defendant specifically intended to perform the criminal act.

 

The prosecution does not need to prove that the driver intended to break the law, hurt someone else, or to gain an advantage.

 

However, if the driver fled from the officer under a different rationalization, then the driver can build an effective legal defense against evading an officer charges.

 

 

Example A

 

Meredith recently turned 68 years old and is beginning to exhibit early signs of dementia. Sometimes while driving she loses focus and becomes disoriented.

One Sunday afternoon, Meredith drives through a 35 mph section of the road at 55 mph. A police officer sees her driving above the speed limit and attempts to pull her over.

 

Meredith does not understand that the officer’s flashing lights and siren are the officer’s signals for her to pull over. Consequently, she continues to speed down the same street at 55 miles an hour with the police officer chasing her.

 

The prosecution most likely could not prove that Meredith evaded the officer willfully. Therefore, Meredith probably could not be convicted of evading a police officer.

 

 

Example B

 

Another example involves a married couple, Phyllis and Bob. Phyllis is 9 months pregnant and begins to go into labor. Bob recognizes that her contractions have begun and decides to drive her straight to the hospital.

 

After leaving their house, Bob drives as fast as he possibly can, regardless of the speed limit. After a few miles, he sees a police officer behind him with his lights on and his siren blaring.

Bob chooses to ignore the police officer and continues driving to the hospital as quickly as possible.

 

When they all arrive at the hospital, the police officer arrests Bob for evading an officer, while Bob’s wife goes straight to Delivery. Bob’s intent, however, was not to deliberately evade a police officer. Bob drove quickly in order to get his wife to the hospital as soon as possible. Under this rationale, the prosecution could not prove him guilty of evading an officer.

 

handcuffs

 

Officer Vehicle

 

California State Vehicle Code 2800 .1 describes the particular markings and equipment on an officer’s vehicle that are necessary to support a charge of misdemeanor evading:

  1. The vehicle must have at least one lit red lamp visible from the front of the vehicle
  2. The officer must sound the siren as often as reasonably necessary
  3. The officer’s vehicle must be distinctly marked through some means other than the red lamp and siren

 

These distinct markings can include:

  • The seal or name of the police or law enforcement department on the outside of the car
  • Flashing blue or clear lights visible to the driver
  • Wigwag lights, or flashing headlights

 

These distinctive markings are an integral part of the support for evading an officer charges.  If the law enforcement vehicle does not have at least three of these distinctive markings, the defendant cannot be charged with evading an officer.

Example

 

Jim, a police officer, drives a vehicle equipped with only a siren, a red light under the rear-view mirror, and a blue amber blinking light in the back.

Jim sees a car run a stoplight. The driver of the other car, Dwight, begins to speed away.

As Dwight speeds off in his car, Jim follows him in his police vehicle. Jim turns on his red light, his siren, and his blinking blue light in the back. However, Dwight does not pull over and continues to run stop signs in order to get away from the officer.

Eventually the police officer catches up to Dwight. Jim finds heroin in the car and charges Dwight with both the transportation of a controlled substance and VC 2800.1.

The prosecutors, however, cannot prove beyond a reasonable doubt that Dwight could see the blinking blue light.  Consequently, the officer’s car does not qualify as being distinctively marked apart from the red light and siren. As a result, the prosecution cannot prove Dwight guilty of evading an officer.

 

 

Officer’s Uniform

 

Under Vehicle Code 2800.1, officers pursuing drivers must be in a “distinctive uniform.”

The California State Juror instructions 2182 explain the uniform requirements as follows:

A “distinctive uniform” means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge is not enough.

Example

Police officers arrest Creed for felony firearm charges as well as for misdemeanor charges for evading an officer after they chase him through downtown streets in their police vehicle.

One of the officers who pursues Creed is wearing a bulletproof vest over her shirt, as well as a vest  which reads “Police” in bright yellow lettering. She is also wearing a gun belt during the pursuit.

The other officer is in street clothes. However, he is wearing a police department jacket, a gun belt, and a baseball cap with “Police” written across the front.

 

Although the officers are not wearing complete and formal blue or black uniforms, their clothing clearly indicates their status as police officers. Consequently, the prosecution could effectively convict Creed of evading an officer.

 

 

Penalties under State Vehicle Code 2800.1 for Evading an Officer in California

 

As the name misdemeanor evading an officer implies, California State Law defines Vehicle Code 2800.1 as a misdemeanor.

 

The potential penalties include:

  • Misdemeanor probation
  • Up to 1 year in county jail
  • Fines of up to $1,000
  • The impoundment of the vehicle used to evade the officer for up to 30 days

 

In addition, the judge may suspend the defendant’s driver’s license for a period of time as a condition of robation

 

The State may only charge a driver for one count of evading a police officer per event. The number of officers involved does not determine how many charges the defendant will face.

 

 

Commercial Driver’s License Suspension

 

Commercial driver’s license holders who commit a single misdemeanor evading an officer crime in a commercial vehicle lose the right to operate a commercial vehicle for one year. Multiple convictions can lead to the permanent suspension of the driver’s commercial driver’s license if the offenses occurred behind the wheel of a commercial vehicle.

 

theft, fraud, robbery, crime, criminal law

 

Related Crimes

 

California State Penal Code 415, Disturbing the Peace

If the prosecution can find only weak evidence, but does not dismiss the evading an officer charges completely, the prosecution may suggest a plea bargain under Penal Code 415 PC, Disturbing the Peace.

“Disturbing the Peace” convictions carry a potential county jail sentence of no more than 90 days and a potential fine of no more than $400.

The most significant advantage of disturbing the peace charges, as opposed to evading an officer charges, is the fact that disturbing the peace charges carry less of a stigma on a criminal record than evading on officer charges..

 

 

California State Vehicle Code 2800.2 Felony Reckless Evading an Officer

Individuals who commit the crime of evading an officer, as described in Vehicle Code 2800, with a willful and wanton disregard for the safety of persons or property, may face felony Reckless evading an officer charges under Vehicle Code 2800.2.

 

Felony reckless evading an officer qualifies as a California wobbler. Wobblers may be charged as a felony or as a misdemeanor. However, California prosecutors usually choose to pursue felony charges.

If the prosecution charges the crime as a felony, a reckless evading charge carries a potential state prison sentence of sixteen months to three years, as well as fines of up to $10,000.

 

 

California State Vehicle Code 2800.3 Evading Causing Injury or Death

If a driver evades an officer as described in Vehicle Code 2800.1, and in the process he or she causes the serious bodily injury or death of another person, then the prosecution will pursue charges under Vehicle Code 2800.3, California’s evading an officer causing injury or death law.

If the act of evading an officer causes only serious bodily injury, then the state considers the crime as a wobbler. The potential California felony penalties include three to seven years in state prison.

 

However, if the driver evades an officer and causes the death of another person, the potential penalty increases to four to ten years in state prison.

 

man in handcuffs

 

Understanding Misdemeanor Evading an Officer Charges under California Vehicle Code 2800.1

 

The State of California charges drivers with evading a peace officer under Vehicle Code 2800.1 if, while driving a motor vehicle, the driver willfully attempts to flee from a police officer who pursues him or her in a car or on a bicycle.

 

The prosecution must prove the elements of the crime, including the following:

  1. The driver specifically intended to evade the officer
  2. The officer’s vehicle exhibited at least one lit lamp visible from the front, thus making it reasonably easy to see
  3. Sirens on the officer’s vehicle were sounded as necessary
  4. The officer’s vehicle was distinctively marked
  5. The officer’s vehicle was operated by a law enforcement official who wore a distinctive uniform

 

A conviction of misdemeanor evading an officer carries the following penalties:

  • Up to 1 year in county jail
  • Fines of up to $1,000

Furthermore, the vehicle used to evade an officer may be impounded for up to 30 days.

 

 

Defending Against California Misdemeanor Evading an Officer

 

The prosecution bears the burden of proof in every criminal case, and defendants deserve to fight for their civil liberties as guaranteed under the Constitution of the United States. An experienced criminal defense attorney can investigate the situation, and unravel what happened in order to effectively defend the accused individual.

By acquiring information on the driver and the situation, a skilled defense attorney may be able to show a lack of specific intent on the part of the driver.

Drivers can only be convicted if the prosecution can prove that the driver specifically intended to evade the officer who was pursuing him or her. There can be many reasons for a driver not to stop when a police officer is pursuing him or her:  The driver could have been distracted and didn’t realize that the officer was signaling for him or her to pull over. The driver could have feared for his or her well-being in the neighborhood where the offense occurred and did not stop. The driver was not able to determine if the individual following him was indeed a police officer due to  insufficient markings on the officer’s vehicle.

Law enforcement protocol exists for a reason, and citizens deserve a legitimate opportunity to fight for their rights.

Murder and Malice Aforethought

Crime shows on television seem to focus only on homicide. After they find the evidence, they prove he killed her, and, bingo, they convict the man of killing his wife. However, in reality, murder charges require more substance to lead to a conviction. Murder constitutes one of the most serious crimes in the United States. In order to convict someone of murder, the prosecution must prove, beyond reasonable doubt, that the individual acted with “malice aforethought.” Malice aforethought describes the individual’s intent and mental state while committing the crime.

 

Malice aforethought differs from terms like malicious, deliberate, or premeditated. “Malicious” means ill will. “Deliberate” is defined as thoughtfully weighing options. “Premeditated” refers to contemplating an action beforehand, and then proceeding with it.

 

California Penal Code 187 states that murder involves one person taking another human’s life with malice aforethought. The law further defines malice aforethought as a deliberate intent to kill, or a reckless disregard for human life.

 

California Penal Code 188 elaborates on malice aforethought as follows:

Such malice may be “express” or “implied.” It is “express” when there is manifest a deliberate intention to take the life of a fellow creature unlawfully. It is “implied” when there is no apparent provocation, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from an intentional act executed with express or implied malice as defined above, no other mental state need be shown

 

homicide

 

Malice aforethought concerns the defendant’s mental state, and more specifically, his or her intent. Express malice aforethought is defined as the deliberate killing of another person, while implied malice aforethought describes a situation in which the defendant killed someone while consciously disregarding the risk for human life. Moreover, implied malice aforethought does not imply a deliberate intent to kill.

 

Examples of express malice would include the following:

  • Choking someone until the victim loses consciousness and stops breathing
  • Shooting firearms at point-blank range at another person
  • Employing a hit man to take another person’s life
  • Deliberately poisoning another person

 

Examples of implied malice would include:

  • Allowing young children to handle loaded firearms without supervision
  • Driving under the influence after receiving warnings from the court concerning the dangers of drinking while driving, or after prior prosecution for DUI
  • Allowing dogs that have attacked and injured people in the past to run free in a park
  • Throwing bricks at cars from a freeway overpass

People accused of murder have an obligation to themselves to fight for their freedom and civil liberties. Finding experienced defense attorneys can help obtain the best outcome. A good lawyer will be able to investigate the situation and uncover information vital to the murder case. Since 1989, over 2,100 people convicted of murder have been exonerated through the dedication of relentless legal counsel. The job of defense attorneys is to stand up for individual rights against an immensely powerful government entity.

 

gavel and scales of justice

 

Defining Malice Aforethought in Murder

 

California state prosecutors rely on malice aforethought to prove the deadly intent of the accused while committing a homicide. The prosecution cannot convict a person of murder unless malice aforethought can be proven.

 

Malice aforethought falls into two categories, express or implied. “Express” refers to a deliberate intent to take human life. “Implied” refers to willfully acting with a conscious disregard for human life.

 

California Juror Instructions explain malice aforethought as follows:

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if he or she unlawfully intended to kill.

The defendant acted with implied malice if:

  1. He or she intentionally committed an act;
  2. The natural and probable consequences of the act were dangerous to human life;
  3. He or she knew this act was dangerous to human life at the time he or she acted
  4. AND
  5. He or she deliberately acted with a conscious disregard for human or fetal life.

Malice aforethought does not require hatred or ill will toward the victim. It refers to the mental state of the perpetrator that must be established before the act that causes death is committed. The concept does not require deliberation or the passage of any particular period of time.

It is not necessary for the defendant be aware of the existence of a fetus in order to be guilty of murdering the fetus.

 

Malice aforethought is considered an integral element of murder charges.

 

drone laws, crime scene, criminal court case, federal case

 

Malice Aforethought and Murder in California

 

In order to convict someone of a crime, the prosecution must prove, beyond reasonable doubt, certain elements of the crime. California State Juror Instructions 520, Murder in the First and Second Degree, define the necessary elements as follows:

 

  1. The defendant committed an act that caused the death of another person, or a fetus

AND

  1. When the defendant acted, (he or she) had a state of mind defined as malice aforethought,

AND

  1. He or she killed without lawful excuse or justification.

 

In order to prosecute someone of a crime, most cases require the prosecution to prove that the person committed the act, and that the person had a specific mental state conducive to criminal behavior. Murder convictions require only that it be proven that the accused unlawfully took another person’s life, and that he or she exhibited malice aforethought.

 

Malice aforethought does not imply a motive; it only describes the mental state of an individual during the deliberate and unlawful commission of homicide.

 

 

Example

 

San Francisco prosecutors have convicted Toby of theft and assault on multiple occasions, and Toby’s criminal record reflects this. He frequents a specific bar on Thursday nights. One Thursday, he joins a group of friends and acquaintances for a celebration of sorts. Although there is no fight or argument,Toby nonetheless brandishes a pistol and shoots one of the other bar patrons.

 

Since no one at the bar says anything to the police, the prosecution can only rely on the video evidence from the bar’s surveillance system. The footage clearly shows Toby deliberately shooting the other man without any evidence of self defense.

 

Toby killed the other bar patron, and did so with an understanding of the consequences of his actions. The prosecution could very well pursue murder charges against Toby for his actions.

 

 

Express Malice

 

Of the two forms of malice aforethought, express malice uses a simpler and more direct standard. Express malice refers to behavior clearly carried out in order to take someone’s life.

California Penal Code 188 defines express malice as an instance when the perpetrators “manifest a deliberate intention to unlawfully take away the life of a fellow creature.”

 

 

Example

 

A disgruntled employee takes an assault rifle to work, and begins to shoot into the main lobby. The employee deliberately intends to kill those he worked with. He has no lawful reason to do so, and is acting with express malice in this instance.

 

 

Implied Malice

 

Implied malice occurs when an individual deliberately acts in a way that causes great risk to human life, and displays a  conscious disregard for this risk. Implied malice occurs indirectly or through reference. The perpetrator does not need to intend to kill, but needs to fully understand that his or her actions will result in another person’s death.

 

California Penal Code 188 defines implied malice as “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

 

 

Example

 

A parent leaves a loaded revolver on the coffee table in the living room. Her child tries to spin the cylinder and ends up shooting and killing herself. The parent understood the dangers associated with firearms, but left the gun out anyway. The parent showed a deliberate disregard for the child’s safety by leaving the gun out while loaded, and could be prosecuted for murder under implied malice.

 

domestic violence

 

Malicious Crime

 

The California legislature defines “malice” differently from “malicious.” While the terms share roots in colloquial language, the criminal laws differentiate between the two terms.

 

Penal Code 7, Subsection 4 defines the two terms as follows:

The words “malice” or “maliciously” suggest a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.

 

The terms in Penal Code 7, Subsection 4, refer to malicious criminal acts, such as the crime of mayhem.

 

Legally, other crimes require ill will or evil intent by the perpetrator. However, the mental requirement in Penal Code 188 does not require ill will. Even if an individual believes that his or her actions benefit someone else, the prosecution can still successfully charge him or her with murder.

 

In the 1975 case of The People v Harris, the California Supreme Court ruled that:

“The malice essential to constitute [murder] is something distinct from [Penal Code 7].”

 

 

Example

 

Bob and Phyllis married each other 40 years ago. Bob began to develop Chronic myelomonocytic leukemia, an extremely painful terminal cancer of the bones. After a few weeks in the hospital, the doctors acknowledged that there was nothing more they could do for him. The doctors sent him home. After returning from the hospital, Bob had a hospice nurse who cared for him during the day. He suffered daily, and Phyllis could not stand to see him suffering. One night, after the nurse went home, Phyllis gave Bob a fatal dose of morphine. After an hour or so, Bob passed away.

 

Although Phyllis acted with the best of intentions, she still deliberately killed her husband.

 

 

 

Deliberation and Premeditation

 

The California state legislature asserts that deliberation and premeditation differ from the mental state of malice aforethought. All murder charges require malice aforethought, but murder charges do not require premeditation or deliberation.

 

Premeditation and deliberation describe scenarios in which the defendant reflected on and planned the commission of the homicide, with an understanding of the consequences.

 

Deliberation and premeditation raise the severity of murder charges in California to first-degree murder. California Penal Code 189 states that first-degree murder includes “killing in a way that is willful, deliberate and premeditated.”

The State of California classifies first-degree murder as the highest-level felony in the state. California considers those who reflect on and commit a homicide as deserving of more severe penalties.

 

Willful, deliberate, and premeditated murder constitutes one of three types of first-degree murder. California State Penal Code 189 defines the others as:

  • Using a destructive devise in California, lying in wait, or using torture in California
  • California’s felony murder rule, or Watson Murder, for certain DUI-related homicides

 

 

Example

 

Jan possesses a frightening temper. One day she decides to bring a pistol to work with her. After starting an argument with a coworker, she brandishes the pistol and threatens to kill the coworker. Jan then briefly calms down and lowers the weapon. However, she slips as she starts to place the pistol back in her purse, and a single shot goes straight into the heart of her coworker.

 

Jan displayed the “express” malice element of murder. Her actions illustrated an intent to take human life. Furthermore, she had reflected on the act beforehand. She had ample time to contemplate how bringing a pistol to work could affect her life, and the lives of her coworkers. However, she proceeded to act in a way that killed her coworker.

knife stabbing towards someone

 

Understanding Malice Aforethought in Murder

 

California only considers homicides as murder if the perpetrator acted with malice aforethought. Murder laws use malice aforethought to describe the killer’s mental state while committing the homicide.

 

Malice aforethought can take two forms, express malice and implied malice.

 

Express malice aforethought refers to situations in which the killer deliberately acts in a way to kill another person.

 

Implied malice aforethought refers to situations in which the killer understands that his or her actions carry an inherent risk to human life, but carries out the risky actions anyway.

 

Express malice aforethought occurs in cases in which an individual shoots someone at point-blank range, or stabs someone to death.

 

Implied malice aforethought occurs in situations in which someone rolls a boulder down a hill towards a group of people, or when someone leaves a loaded gun out where a child can reach it.

 

Malice aforethought is an integral element of murder charges, and determines the severity of the homicide. While the concept may seem rather black and white, the prosecution and the defense must explore it in detail to ensure justice. People accused of murder, or of any homicide-related crime, face the most severe penalties that the State of California can impose. Only through diligent research and investigation can the accused hope to find a positive outcome. Without an experienced defense attorney, the chances of success are drastically reduced.

Driving Without A License in California

Most people assume that driving without a license carries the same penalties and repercussions as a parking ticket or a minor speeding violation. However, California law classifies driving without a license as a wobbler offense. Wobblers may be charged as infractions or misdemeanors. A misdemeanor conviction of driving without a license can result in a criminal record.

 

California vehicle code 12500(a) criminalizes driving without a valid license. The following scenarios define driving without a license in California:

  • The defendant never obtained a driver’s license.
  • The defendant is not old enough to drive.
  • The defendant did not renew his or her driver’s license.
  • The defendant resides in California, but never obtained a California driver’s license.

 

The penalties for driving without a license in California can include probation for up to three years, six months in county jail, fines of up to $1,000, as well as impoundment of the driver’s vehicle.

 

People accused of driving without a license in California can face comparatively extreme penalties if convicted. Consequently, they deserve an opportunity to defend themselves in an effective manner.

 

Experienced defense attorneys have the ability and resources to investigate the situation. The investigation can bring relevant facts to light and aid in defending the accused citizen.

 

Criminal defense attorneys act as a counterbalance to the whims and caprices of popular will, and to the power imbalance between citizens and the government.

 

drunk driving

 

Defining Driving Without a License in California

 

Vehicle Code 12500(a) states:

A person may not drive a motor vehicle upon a highway unless the person holds a valid driver’s license issued under this code, except for those persons who are expressly exempted under this code.

 

The law seeks to ensure that only qualified individuals drive on California roads. Vehicle Code 12500 is not violated if the driver does not have the license on his or her person. Only drivers without a valid license are charged under this code.

 

Individuals who have been issued valid driver’s licenses, but do not possess it when a police officer stops them, are in violation of California vehicle code 12951.

 

Under Vehicle Code 12951, the State of California divides failure to display a driver’s license into two categories that are described in two sections of the code. The state may punish section A violations as infractions, while section B violations are considered misdemeanor offenses.

 

The penalties for failure to produce a driver’s license vary depending on why the driver did so.

Under California Vehicle Code 12951(a), driving without a license in your possession can be punished as an infraction. The penalties consist only of fines of up to $250.

 

Under Vehicle Code 12951(b), refusing to show your license to a police officer qualifies as a misdemeanor. The penalties can include probation, a six-month county jail sentence, and fines of up to $1,000.

 

 

Example of Failure to Display a Driver’s License

 

One morning while leaving for work, Daryl forgets his wallet on the kitchen counter. He realizes he is late for work and begins to drive faster than he normally would.

 

A police officer pulls him over for driving 50 miles an hour in a 40 mile-an-hour zone. California had issued Daryl a valid license, but he had left it at home.

 

Daryl and his lawyer quickly present his valid California driver’s license the next week, and the judge dismisses the charges.

 

Failure to present a driver’s license occurs when a driver refuses to show his or her license to a law enforcement officer while the officer is enforcing a California vehicle code. It can also occur when someone is driving without a valid license in his or her possession.

 

 

Example of Failure to Present a Driver’s License

 

17-year-old Angela earned her driver’s license last year. She frequently drives to and from school, as well as to parties around town.

 

One Friday night she sneaks out of the house and takes her dad’s car. She drives to a party and begins to take part in the festivities. After a few drinks she decides to drive home. However, a police officer pulls her over.

 

Angela understands the California Zero Tolerance Law pertaining to minors driving under the influence. She does not want to be charged with a DUI. Therefore, when the officer asks for her license, she refuses to show it.

 

By refusing to show a law enforcement officer her license while the officer is performing his or her legal duties, Angela broke the law. She violated California State Vehicle Code 12951 by failing to present a driver’s license.

 

 

Example of Driving Without a License

 

Phyllis moved from Scranton, Pennsylvania to Imperial Beach, California to go to college. Since her Pennsylvania driver’s license would never expire, she never acquired a California driver’s license.

 

After graduating from college, Phyllis found a full-time job in San Diego. She rented an apartment and registered to vote in California. By registering to vote and finding a more permanent place to live, Phyllis established residency in California.

 

After establishing residency, Phyllis has 10 days to change her driver’s license and vehicle registration. If she does not obtain a California license, Phyllis may be charged with driving without a license under California Vehicle Code 12500a.

 

 

Driving Without a License in California – the Elements of the Crime

 

In order for the prosecution to prove someone guilty of driving without a license, three elements of the crime must have occurred:

  1. The defendant drove a motor vehicle on a highway
  2. While the defendant was driving, he or she did not hold a valid California driver’s license
  3. The defendant was not exempted from the requirement to hold a California driver’s license

 

The law does not limit valid driver’s licenses to those issued by the California  Department of Motor Vehicles. Under California law, the driver must hold a valid license from the driver’s state of residence. In addition, the license must be valid for the type of vehicle the driver is operating.

 

 

Example

 

Karen grew up in Riverside and acquired her driver’s license on her 16th birthday. However, when her license expired on her 21st birthday, she failed to renew it.

 

A few weeks after her 21st birthday, police officers stop Karen at a DUI checkpoint. Karen has not had anything to drink, and has her expired driver’s license on her person.

 

However, the police charge her with driving without a valid driver’s license under Vehicle Code 12500.

 

Injustice system court gavel hits person needing bail bond

 

The Burden of Proof for Driving Without a License in California

 

California Vehicle Code 12500 differs from many other criminal codes. The prosecution only needs to allege that the individual was driving without a license at the time of the offense. The driver bears the burden of proof that he or she possessed a valid driver’s license.

 

California Juror instructions 16.631, Licensed Driver- Burden of Proof, states that:

It is not necessary for the people to introduce evidence that the defendant did not have a valid driver’s license to operate a motor vehicle in California (Vehicle Code 12500 VC, Driving without a License Prosecution). Whether the defendant was or was not properly licensed is a matter peculiarly within his or her own knowledge. The burden is on the defendant to raise a reasonable doubt as to his or her guilt of driving a motor vehicle upon a highway without being the holder of a valid driver’s license.

 

The reasoning behind the shift pertaining to the burden of proof stems from how easily the driver can prove that he or she possesses a valid driver’s license. Prior to the advent of the internet and information globalization, records were kept only on paper. The California state legislature passed this law at a time when technological limitations hindered record keeping. The outdated nature of this law no longer makes sense in today’s fast-paced world, but the law remains the same.

 

 

Penalties for Driving Without a License in California

 

California state prosecutors can charge drivers with an infraction or with a misdemeanor under Vehicle Code 12500.

 

Infraction charges may result in fines no greater than $250.

 

However, misdemeanor convictions carry more severe penalties which include:

  • Probation for up to 3 years
  • A county jail sentence of up to six months
  • Fines of up to $1,000
  • Vehicle impoundment for up to 30 days for defendants with prior driving-related convictions

 

A driver’s history determines how the prosecution will charge the offense. Most first offenses will result in infraction charges. However, repeat offenders and drivers with marred driving records will most likely face misdemeanor charges.

 

lawyer standing in a suit

 

Understanding Driving Without a License in California

 

Under California State Vehicle Code 12500, in order to operate a motor vehicle on California roads, drivers must possess a valid, date-issued driver’s license.

 

Driving without a license differs from failure to present a driver’s license.

 

Vehicle Code 12500a prohibits drivers who have not been issued a valid state driver’s license from driving.

 

California State Vehicle Code 12951, however, concerns licensed drivers who either refuse to present their license to a law enforcement officer, or who are driving without the license in their possession.

 

Skilled criminal defense attorneys can easily handle cases involving driving without a license because they know what to do.

 

By aggressively interacting with the prosecution and the state, an experienced criminal defense attorney can find a way to have the charges either reduced, or dismissed. However, most people do not have the knowledge or experience to do this on their own.

 

Driving without a license charges often involve people who either allowed their driver’s license to expire, who never obtained a driver’s license, or who established California state residency without obtaining a California driver’s license.

 

Individuals convicted of driving without a license in the State of California face either infraction or misdemeanor penalties.

 

Infraction penalties only consist of fines of up to $250.

 

However, misdemeanor penalties can include the following:

  • Informal probation
  • A county jail sentence of up to six months
  • Fines of up to $1,000
  • A 30-day impoundment of the driver’s car

 

Accused individuals have a right to defend themselves. However, an effective defense requires skill and experience within the legal landscape. Working with a defense lawyer ensures the best possible outcome in criminal cases.

 

Driving in California With A Suspended or Revoked License

Driving in California with a suspended or revoked license is prohibited under vehicle code 14601 .  However, a key factor in determining a verdict revolves around the driver’s knowledge of the suspension or revocation.

 

California treats the crime of driving with a suspended or revoked license more severely than driving without a license. Driving without a license refers to individuals who have never had a license. The state considers driving with a suspended or revoked license to be more serious because the DMV suspended or revoked the individual’s driver’s license for a reason. Moreover, by driving anyway, the individual disregards the ruling of the DMV.

 

The State of California classifies driving with a suspended or revoked license to be a misdemeanor offense, and convictions can result in jail time as well as substantial fines.

 

Injustice system court gavel hits person needing bail bond

 

To officially suspend or revoke a driver’s license, the State of California must send the message of suspension or revocation in one of three ways: by certified mail, by an officer serving the individual with a notice of suspension or revocation, or by a judge (in court) recommending a license suspension or revocation. If the state sent the message in one of these ways, the state will then presume that the individual knew of the suspension or revocation.

 

People accused of driving with a suspended or revoked license have a constitutional right to defend themselves in court. An effective defense attorney acts as a resource that can reduce the great imbalance of power between the American government and the American citizens. A skilled defense attorney challenges the state to be fairer, more accurate, and more just by diligently researching and investigating the situation in question.

 

Defining Driving with a Suspended or Revoked License in California

 

California state prosecutors must prove specific elements of the crime in order to convict someone of driving with a suspended or revoked license.

 

The elements include:

 

  1. The defendant drove a motor vehicle while his or her California driver’s license was suspended or revoked
  2. The defendant knew that his or her driving privileges had been suspended or revoked at the time

 

 

Element One

 

The first element concerns only a simple fact: either the individual in question was driving, or was not driving, at the time of the arrest. The officer’s testimony, together with other evidence, determines this element.

 

 

Element Two

 

The second element concerns knowledge of the suspension or revocation.

 

In order to presume that an individual had knowledge of the suspension or revocation, one of three things must have happened.

 

  • A certified mail carrier had delivered a letter of revocation or suspension from the DMV to the driver.
  • A police officer had served a notice of suspension or revocation to the driver at the time of arrest
  • A judge had informed the driver of a suspension or revocation during sentencing for a prior crime

 

Even if one of these three things did occur, it only creates a presumption of knowledge. It does not prove that the individual had knowledge of the suspension or revocation. In a jury trial, the prosecution will typically create a presumption, leading  the jury to conclude that the driver had knowledge of the suspension or revocation.

 

A skilled criminal defense attorney will build a case that challenges this presumption of guilt.

 

mail man and letter

 

Suspension or Revocation by Letter

 

The law presumes the individual received a letter if the prosecution can prove three things.

  1. The California DMV mailed the individual a notice of revocation or suspension
  2. A mail carrier delivered the notice to the individual’s most recently reported address
  3. The mail carrier did not return the DMV notice as undeliverable or unclaimed.

 

 

Example

 

Stanley suffers a traumatic brain injury, leaving him with severely limited cognitive abilities. For his safety and the safety of others, his family and doctor contact the DMV to revoke Stanley’s driving privileges.

Since the accident, Stanley has moved into an assisted living facility. The DMV sends the notice of revocation to his former address. The U.S. Postal Service returns the letter to the DMV as undeliverable.

 

In this case, if a police officer pulled Stanley over, he could not be arrested for driving with a revoked license. The DMV notice never reached Stanley. Therefore, the court may not presume that he had knowledge of the license revocation.

 

Suspension or Revocation by Verbal Order

 

The law may also presume that a driver knew of his or her license suspension or revocation if he or she received a verbal notice:

  1. A police officer may personally serve a notice of suspension or revocation at the time of arrest
  2. A judge may inform the driver of a suspension or revocation at a sentencing hearing for a prior violation that resulted in the suspension or revocation of the driver’s license.

 

 

Example

 

Again using Stanley as our example, things could be very different with just a few changes in circumstances.

 

After Stanley moves into the assisted living facility, new tenants began to rent his house.

When the DMV revocation letter arrives in the mail, the new tenants throw it out, and the US Postal Service never returns the letter as undeliverable. This scenario creates a presumption of guilt even though Stanley never received the letter.

 

The presumption does not indicate Stanley’s guilt under Vehicle Code 14601. Stanley’s criminal defense attorney can point out that he had moved, and therefore never received the letter of revocation.

 

gavel and scales of justice

 

California Laws Regarding Driving With a Suspended or Revoked License

 

California State Vehicle Code 14601 can only be used to suspend or revoke an individual’s driver’s license if the suspension or revocation is valid. Valid driver’s license suspensions and revocations are covered in a variety of sections of the code.

The State of California may suspend or revoke driving privileges under Vehicle Code 14601 for specific offenses, general offenses, DUI, habitual traffic offenses, or chemical test refusal and other DUI related offenses.

 

 

Vehicle Code 14601

Specific offenses leading to license suspension or revocation include:

  • Reckless driving
  • Alcohol or drug abuse
  • Physical or mental limitations inhibiting safe driving
  • Being declared a negligent or incompetent operator.

 

Vehicle Code 14601.1

General offenses may also lead to a license suspension or revocation under Vehicle Code 14601.1. This section serves as a catch-all for prohibiting individuals from driving with a suspended or revoked license for any reason.

 

Vehicle Code 14601.2

In California, a serious consequence of a DUI conviction is the suspension or revocation of an individual’s driver’s license. Vehicle code 14601.2 punishes individuals for driving with the knowledge that his or her license has been suspended or revoked due to a DUI conviction. In California, DUI includes DUI resulting from drug use as well as DUI resulting in injury to another person. Vehicle Code 14601.2 lists all of these types of DUIs, and provides the foundation for charging an individual for driving with a suspended or revoked license due to a DUI conviction.

 

Vehicle Code 14601.3

Habitual traffic offenders may have their driver’s licenses suspended or revoked. Vehicle Code 14601.3 prohibits habitual traffic offenders from accumulating a history of driving problems while their driving privileges are suspended or revoked. Vehicle Code 14601.3 states that a driver becomes a habitual traffic offender under the following circumstance:

During a 12-month period, the driver is convicted of any combination of the offenses listed below, with the resulting suspension or revocation of his or her driver’s license.

  1. Two or more serious driving-related crimes, such as reckless driving or exhibition of speed
  2. Three or more general moving violations, such as speeding
  3. Three or more accidents causing injury or property damage totaling at least $750.

 

Vehicle Code 14601.5

Chemical test refusal in other DUI offenses may result in a driver’s license being suspended or revoked. Vehicle Code 14601.5 prohibits drivers from knowingly driving with a license suspended or revoked due to the following:

  • Chemical test refusal
  • California DUI under 21
  • Refusing a preliminary alcohol screening after being suspected of driving under the influence while on probation for DUI
  • Driving with a blood-alcohol content of 0.01 percent or greater while on probation for California DUI
  • Driving with a 0.04% blood alcohol content or greater if the driver holds a commercial driver’s license

 

jail cells

 

Penalties for Driving with a Suspended or Revoked License

 

The State of California classifies driving with a suspended or revoked license as a misdemeanor offense. Potential penalties include fines and county jail time. However, the specific state-sanctioned punishment is determined by the following: the reason for a driver’s license suspension or revocation, any prior convictions relating to license suspension or revocation, and the individual’s driving history.

 

First-time offenders face various penalties depending on the specific violation.

Vehicle Code

14601

License revoked or suspended for specific offenses, including reckless driving, alcohol or drug addiction, negligent operator, physical or mental condition 5 days to 6 months in county jail Fines from $300 to $1000
Vehicle Code

14601.1

License revoked or suspended for general reasons which are not listed in other statutes Up to 6 months in county jail, no minimum Fines from $300 to $1000
Vehicle Code

14601.2

License revoked or suspended for DUI 10 days to 6 months in county jail Fines from $300 to $1000
Vehicle Code

14601.3

Habitual traffic offenders while license suspended or revoked 30 days in county jail Fines up to $1000
Vehicle Code

14601.5

License revoked or suspended for chemical test refusals and DUI-related offenses Up to 6 months in county jail, no minimum Fines from $300 to $1000

 

 

 

Driver’s License Reinstatement

 

Driver’s license suspensions expire. However, drivers still need to act in order to reinstate their driving privileges.

 

The California DMV explains that in order to reinstate driving privileges, an individual must visit a California DMV office in person with the required documentation. He or she must then pay the fines to the State of California. The driver must also prove that he or she completed all probation requirements.

 

we the people

 

Understanding Driving with a Suspended or Revoked License in California

 

California Vehicle Code 14601 prohibits individuals from knowingly driving with a suspended or revoked license.

 

The law contains various sections, and punishes convicted drivers differently depending on the specific section that he or she violated.

 

California law classifies driving with a suspended or revoked license as a misdemeanor crime.

In order to convict an individual of driving with a suspended or revoked license, the prosecution must prove two elements of the crime.

  1. The individual was driving the vehicle
  2. He or she understood that his or her license was suspended or revoked

 

The driver’s knowledge is an integral part of the crime. Moreover, if the driver did not know of the suspension or revocation, then he or she cannot be proven guilty of driving with a suspended or revoked license.

 

A skilled criminal defense attorney can help the individual stand up against the court system. Defense lawyers hold the court accountable by representing people accused of crimes. Furthermore, without experienced legal counsel, it is almost impossible to obtain a positive outcome in a driving with a suspended or revoked license case.

 

However, most people do not have the time, energy, or resources available to research and investigate the situation with enough specificity to build a successful defense.

 

Criminal Trespass in California

Everyone at some point has seen a bright red sign clearly stating, “No Trespassing,” and most people intuitively understand the concept that people may not enter the area without explicit permission. However, California law, under Penal Code 602, Criminal Trespassing, deals with an individual interfering with the use of property belonging to someone else, or an individual acting in a bothersome way on someone else’s property, or an individual refusing to leave after the property owner asks him or her to do so.

 

The prosecution must prove three distinct elements of the crime to convict someone of criminal trespass in California. The elements include the following:

  1. The defendant willfully entered someone else’s property
  2. He or she acted with the specific intent to interfere with the property owner’s rights
  3. The defendant actually did interfere with the property owner’s rights by damaging their property or interfering with their business

no trespassing sign, private property

The State of California recognizes criminal trespass as an infraction, misdemeanor, or felony. The prosecution determines which severity to pursue by assessing the specific circumstances of the case.

 

The penalties for criminal trespass in California vary depending on how the prosecution charges the crime. Generally, the defendant faces misdemeanor or infraction penalties.

If the prosecution pursues a misdemeanor charge of criminal trespass in California, the defendant can face penalties of up to six months in county jail and fines of up to $1,000.

However, other cases of criminal trespass in California  may lead to mere infraction charges, with penalties consisting of only a small fine.

The severest form of criminal trespass in California is called “aggravated trespass”. California Penal Code 601 defines aggravated trespass as an event in which the defendant threatens to injure someone physically, and then enters his or her home or workplace without permission within 30 days of the threat. The State of California considers aggravated trespass to be a wobbler, meaning that  the prosecution may pursue either misdemeanor or felony charges. The felony penalties for aggravated trespass may also include felony trespass charges. The defendant could face a jail sentence of from 16 months to three years.

Experienced criminal defense attorneys can research the situation and the series of events in order to more skillfully defend the accused. More information leads to a stronger defense, and aggressive defense attorneys understand how to find information pertinent to the case.

 

 

 

Defining Criminal Trespass

 

California State Penal Code 602 defines about 30 activities considered to be criminal trespass using over 3003 words. However, we will attempt to simplify the concept.

 

California State Penal Code 602 prohibits a few fundamental acts under California trespassing laws as described below:

  • An individual may not enter someone else’s property with the specific intent to damage that property
  • A person may not enter someone else’s property with the specific intent to interfere with or obstruct the business activities conducted there
  • Someone may not enter and “occupy” another person’s property without permission
  • People may not refuse to leave private property after the property owner asks him or her to do so

 

However, Penal Code 602 also prohibits obscure forms of criminal trespass in California, which include:

  • Knowingly skiing in an area or on a ski trail which is closed to the public and which has signs posted indicating the closure
  • Deliberately taking soil, dirt, or stone from someone else’s land without permission
  • Taking oysters or other shellfish from someone else’s land
  • Refusing to be screened at an airport or courthouse.

 

lawyers at a meeting, documents, signing paperwork

 

Elements of The Crime

 

California State Juror Instructions 2930 describe the following consistent elements of the crime which the prosecution must prove beyond reasonable doubt.

 

  1. The defendant willfully entered land, or a building, belonging to someone else.
  2. When the defendant entered, he or she intended to damage someone else’s property, or property right, or to interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land, or owner’s agent, or person in lawful possession of the land).
  3. The defendant actually did damage to someone else’s property, or interfered with, obstructed, or damaged a lawful business or occupation carried on by the owner of the land, the owner’s agent, or the person in lawful possession of the land.

 

warning no trespassing sign

 

Terminology

 

The state uses common words. However, the words take on a special meaning in this context.

 

Willfully

 

The term “willfully” refers to actions done deliberately or on purpose. Acting “willfully” does not necessitate an active intent to break the law. It only refers to a deliberate attempt to perform the act that the individual carried out.

 

 

Specific intent

 

“Specific intent” defines a particular mental state.  A person acts with specific intent not only by intending to carry out the act, but also by intending to realize the consequences of his or her act

 

 

Example

 

A homeless man named Andy panhandles in the downtown area. After begging all day, with little to show for his efforts, Andy decides to indulge himself with an exquisite sandwich from a fine eatery in the financial district.

His restaurant of choice caters to office workers and corporate executives. Andy, however, enters the restaurant, purchases his sandwich, and eats his sandwich in the restaurant. Andy only owns one set of clothes, which have become threadbare over  the last few years. Consequently,  they barely hang together. He rarely bathes, and carries a distinct odor with him wherever he goes.

His stench offends the other patrons and drives business away from the restaurant.

Andy deliberately entered the restaurant, but he did not commit criminal trespass.

Andy cannot be convicted of criminal trespass because he did not enter the restaurant with the specific intent of disrupting the business in the restaurant. His actions did have the effect of disrupting business, but he did not willfully enter the property intending to do so.

 

 

Actual Damage to Property Rights or Business

 

The prosecution may not convict someone of criminal trespass if the defendant never actually damaged the property, or interfered with business.

 

In other words, if the individual specifically intended to enter the property in order to cause damage, or to interfere with conducting business operations, but did not actually succeed, then the prosecution cannot hold the defendant liable for criminal trespass. The individual did not commit this crime as defined by law.

 

 

Example

 

Ryan is an activist for animal rights. One day he goes to a county fair to hand out leaflets protesting the treatment of farm animals. He stands in front of a rancher’s display and attempts to give leaflets to visitors who want to talk to and conduct business with the rancher. However, anyone who wants to avoid Ryan and interact with the rancher can physically do so.

Not long after he begins handing out leaflets, the police arrest Ryan. However, the court cannot convict him of criminal trespass. Even though his intent may have been to disrupt the business activities at the rancher’s display at the fair, he failed to do so. There was nothing to prevent patrons from easily moving past Ryan.

 

 

Example

 

Kelly sets up a table in a library parking lot to protest animal testing. She does this without the library’s permission. She sets up her table in front of the parking lot entrance, thus preventing the library employees and patrons from accessing the parking lot and the front doors. Kelly’s table disrupts the business and forces the employees to behave differently.

 

Kelly committed criminal trespass because the business was not able to operate normally due to her behavior.

 

 

Occupying Property

 

The State of California commonly prosecutes people for criminal trespass because they have “occupied” someone else’s property without their consent.

 

California State Penal Code 602, Criminal Trespass, defines criminal trespass by occupying property as follows:

The word “occupy” means to remain in a place continuously for a significant amount of time.23

 

 

Example

 

A group of friends sneaks onto a large privately owned segment of beach without the owner’s permission. Their intent is to throw an all-night party. The prosecution cannot convict them of trespass by occupying the property because they only stayed on the property for one night.

 

 

Example

 

The 1967 case, People v. Wilkinson, asserted that the length of time matters in criminal trespass cases. The State can only convict people of criminal trespass if they stay for a significant period of time.

“The purpose of the legislature in passing subdivision (l) of the trespass law is quite clear. It intended the word ‘occupy’ to mean a non-transient, continuous type of possession. Surely the transient overnight use of four 3 to 7 foot areas in a very large ranch for sleeping bags and campfire purposes was not the type of conduct which the legislature intended to prevent when it used the word ‘occupy’. Had this been so, many verbs could have been used in place of ‘occupy’ to express the intention of preventing such transient use of so small an area, e.g., be, remain, loiter, tarry, camp, stay, and probably many more. Having in mind the legislative purpose in passing subdivision (l) of Section 602, it is rather obvious that some degree of dispossession and permanency be intended.”

 

prison yard with inmates, guard, and dog

 

Penalties for Criminal Trespass Under California State Penal Codes 601, 602 and 602.8

 

Depending on the specific circumstances of the case, prosecutors may file the unique California criminal trespassing charges for the following:

  • Infractions
  • Misdemeanors
  • Felonies

 

 

Penal Code 601 Aggravated (Felony) Trespass

 

The State of California can specifically charge “aggravated” criminal trespass under Penal Code 601 under unique circumstances. The charge only results in a conviction if the prosecution can prove the following:

 

  1. The defendant made a credible (that is, believable) threat to seriously injure another person, intending to make that person fear for his or her safety (or that of his or her family).
  2. Within 30 days after making the threat, the defendant entered the person’s property or workplace with the specific intent to carry out the threat.

 

The State of California actually considers aggravated trespass as a wobbler under California law. The crime may be charged either as a misdemeanor or felony. The prosecution will pursue the appropriate charges based on the defendant’s criminal history, as well as on the specific circumstances of the case.

Misdemeanor penalties for aggravated trespass include up to one year in county jail and fines of up to $2,000.

However, individuals charged with felony aggravated trespass face penalties that  include 16 months to three years in county jail. Moreover, the defendant may also receive felony probation.

 

 

Penal Code 602 Misdemeanor Criminal Trespass

 

The prosecution charges the majority of criminal trespass cases as misdemeanors under California law. Potential misdemeanor penalties can include:

  • Misdemeanor probation
  • Up to 6 months in county jail
  • Fines of up to $1,000

 

 

Penal Code 602.8 Criminal Trespass as an Infraction

 

The prosecution often charges criminal trespass in its simplest form, as an infraction, under California law.

 

Infraction charges often occur under specific circumstances that include the following:

  1. The defendant willfully entered someone else’s land without permission.
  2. Either a fence enclosed the land, or various “no trespassing” signs were hung at intervals of no less than three to a mile

 

The penalties for criminal trespass as an infraction under Penal Code 602.8 include:

  • A seventy-five dollar ($75) fine for a first offense
  • A two hundred fifty dollar ($250) fine for a second offense on the same land

However, for a third offense on the same land, the charge will be misdemeanor trespass.

 

 

Expungement of a Criminal Record After a Trespass Conviction

 

If the judge sentences an individual to probation for a trespass conviction in California,  the convicted individual may have an opportunity to receive an expungement of the crime. In order to qualify for an expungement from the court, the convicted individual must successfully complete probation. If the individual fails to adhere to all of the terms and conditions of his or her probation, the judge may very well deny an expungement.

 

no trespassing sign

 

Understanding Criminal Trespass Laws in California

 

Trespassing laws intuitively refer only to illegally entering someone else’s property. However, the State of California considers a broad range of acts to be illegal under its criminal trespass laws.

In its simplest form, criminal trespass makes it a crime for individuals to enter or remain on property belonging to someone else without permission to do so.

The prosecution will usually pursue misdemeanor charges in criminal trespass cases. The penalties can include six months in county jail, and fines of up to $1,000.

 

However, individuals charged with aggravated trespass can face felony penalties. The penalties include a jail sentence of from 16 months to three years, as well as felony trespass charges.

 

 

Examples

 

  • An individual may not enter a restaurant with the specific intent of creating a disturbance in order to drive other patrons away.
  • People may not enter a garage owned by someone else without the property owner’s consent, and start sleeping in the garage for an extended period of time.
  • The most extreme aspect of aggravated criminal trespass law makes it illegal for someone to threaten another person, and then go to the residence of that person with the intent of following through on the threat.

 

lawyers at a meeting

 

Defending Against California Criminal Trespass Charges

 

Criminal trespass charges can significantly impact an individual’s daily life with jail time and severe fines. However, the Constitution guarantees citizens the right to legal counsel. People can empower themselves by learning about the charges. Knowledge allows people to develop a solid understanding of the most effective courses of action. Experienced defense attorneys function as a vital resource for people accused of criminal activity. Diligent research conducted by criminal lawyers gives them enough information to fight against the charges. The defense attorney can focus on disproving the three integral elements of the crime:

 

  1. The defendant willfully entered someone else’s property.
  2. He or she did so with the specific intent to interfere with that person’s property rights.
  3. The defendant actually interfered with the person’s property rights.

 

If the prosecution cannot prove all three of these elements to the jury, then the accused citizen may not be convicted of criminal trespass.

 

One of the most damaging consequences of a criminal trespass conviction is the effect it has on someone’s criminal record. Criminal trespass convictions on criminal records can inhibit professional growth, or even bring it to a complete stop. Fighting criminal trespass charges becomes integral to individuals concerned with furthering their careers.

 

People deserve to stand up for their rights. Aggressive criminal defense attorneys offer the best chances for success when fighting the legal system.

California Money Laundering

Since AMC’s premier of Breaking Bad, many people have became intrigued with the criminal world and how criminal enterprises logistically function. Disguising their obscene wealth becomes a significant factor for the characters, and they purchase a car wash to use as a filter for their money. Their actions exemplify California Money Laundering at it’s most basic. The criminals use an intermediary to conceal the source of criminal funds in order to appear legitimate, thereby avoiding suspicion from law enforcement officials.

 

California law describes two distinct forms of money laundering. California State Penal Code 186.10 defines money laundering related to any type of crime. California State Health and Safety Code 11370.9 concerns money earned from drug crimes.

 

 

An example of money laundering under California State Penal Code 186.10  involves a married couple. The husband runs an illegal gambling ring on the weekends and brings home an average of $5,000 every week. During the week his wife consistently deposits the cash into their joint banking account. Although she never takes part in the illegal activity, she knows where the money came from. This is enough to convict a person of money laundering.

 

An example of money laundering under California State Health and Safety Code 11370.9  involves a successful drug dealer. Throughout the month he makes $30,000 by selling black tar heroin and cocaine. He uses the cash from drug sales to stock the registers of a fleet of food trucks that he owns. He uses the food trucks to conceal the source of the drug money, and thus can be convicted of money laundering.

 

 

 

The prosecution must prove three elements of the crime in order to convict someone of money laundering in the State of California.

  • The individual conducted or attempted to conduct a transaction through a financial institution.
  • The transaction met the minimum amount of money required by California state law.
    • $5,000 over a 7-Day period or $25,000 over a 30 day period
  • The individual took part in the financial transactions to promote illegal activity.

 

The State of California can convict people of money laundering whether or not they were involved with the other illegal activities that generated the funds.

 

California law considers both forms of money laundering as wobblers. meaning the prosecution may pursue misdemeanor or felony charges for money laundering. The charges depend on the defendant’s criminal history as well as on the facts of the case.

 

Misdemeanor penalties can include jail time of up to one year, and fines of up to $1,000.

 

Felony penalties include jail sentences of from 16 months to four years, and fines of up to $250,000, or twice the amount of money laundered, whichever sum is greater.

 

cartoon portrait of al capone

 

History of Money Laundering

 

Al Capone arguably ran the most successful organized crime ring in the United States during the prohibition era.  Although he earned upwards of 100 million dollars annually through bootlegging, extortion, prostitution, and illegal gambling, the authorities could not find the money. Capone invested in cash-only laundromats as a way to obscure the source of his financial gains, thereby coining the phrase “money laundering.”

 

Currently, the term refers to any process that “cleans” criminally attained funds of their illicit origins. This process allows the funds to be used legally.

 

While Capone’s actions coined the term “money laundering,” the practice has been around as long as money has existed.

 

The three integral steps of money laundering involve placement, layering, and integration.

 

Placement involves converting illegally obtained money into assets that seem legitimate. The practice could involve an individual depositing funds into a bank account of a separate entity. The separate entity then functions as a middleman between the criminal money and legitimate spending.

 

Layering involves using a multitude of transactions in order to distance the funds from their criminal origins. The practice could involve multiple transfers across multiple accounts, or the purchase of tangible property. Basically, layering disguises the money’s source.

 

Integration allows the money to reenter the mainstream economy. Moreover, it benefits the original owner. The owner can invest the money in legitimate businesses and produce fake invoices to further mask the origin of the money.

 

Prior to 1986, the federal government did not recognize money laundering as an independent crime. Federal prosecutors needed to link money laundering to a separate crime, such as tax evasion in the Al Capone case. However, the Money Laundering Control Act of 1986 permanently outlawed money laundering as an individual crime.

 

The Money Laundering Control Act of 1986 began to crack down on money obtained from transporting and selling illegal drugs. Drug trafficking often occurred through large-scale organized crime rings. However, low-level workers handled the actual transportation and sale of the drugs while crime ring leaders were able to keep the profits.

 

The money laundering Control Act of 1986 allowed prosecutors to charge drug bosses for merely handling the money attained through illicit activity.

 

drawing of a gangster in a hat smoking a cigarette

 

Defining California Money Laundering

 

Understanding the various terms used in California law pertaining to money laundering can facilitate an understanding of the crime and it’s definition.

 

California State Juror Instructions 2997, Money Laundering, provides the following explanations:

 

 

“Financial institution” means any national bank or banking institution located or doing business in the State of California.

 

A “transaction” includes the deposit, withdrawal, transfer, or bailment, loan, pledge,  payment, or exchange of currency or a monetary instrument, or the electronic, wire, magnetic, or manual transfer of funds between accounts by, through, or to, a financial institution.

 

A “monetary instrument” means money of the United States of America, or of any other separate entity

 

“Criminal activity” means a criminal offense punishable under the laws of the State of California by death or imprisonment in the state prison, or a criminal offense committed in another jurisdiction which, under the laws of that jurisdiction, is punishable by death or imprisonment for a term exceeding one year.

 

A “foreign bank draft” means a bank draft or check issued or made out by a foreign bank, savings and loan, casa de cambio, credit union, currency dealer or exchanger,  check cashing business, money transmitter, insurance company, investment or private bank, or any other foreign financial institution that provides similar financial services, on an account in the name of the foreign bank or foreign financial institution held at a bank or other financial institution located in the United States or a territory of the United States.

 

 

California State Penal Code 186.10

 

California State Penal Code 186.10 defines general money laundering as:

Conducting or attempting to conduct, a transaction through a financial institution.

 

The transaction or series of transactions through the financial institution must add up to a total value of more than $5,000 over a 7-Day period, or more than $25,000 over a 30-day period.

 

The individual must conduct the transactions:

–   in a deliberate attempt to promote criminal activity

–    with the knowledge that the funds originally came from illegal activity

 

 

Example

 

An example of General money laundering involves Jan. Jan runs a brothel and makes $1,500 a day.  Every Monday and Thursday she deposits $4,500 into the same bank account. The State of California could convict Jan of general money laundering.  Even though she never attempted to conceal the origin of the funds, she did make multiple deposits within a seven-day period totaling more than $5,000. The money came from an illegal source.

 

However, the prosecution must prove the defendant intended to support criminal activity.

 

Another example involves Ryan and Kelly.  Ryan and Kelly began dating years ago. Ryan explains to Kelly that he wants to start a business, but needs start up money.  Kelly gives Ryan $15,000 as an investment for what she believes to be equity in a legitimate business. However, Ryan uses the money to start a meth lab.

 

Kelly did not know that her money would be used to finance criminal activity involving controlled substances. She therefore cannot be convicted of money laundering.

 

California Health and Safety Code 11370.9

 

California Health and Safety Code 11370.9 describes money laundering in connection with controlled substance crimes.

 

The prosecution must prove three things in order to convict an individual of money laundering in connection with controlled substance crimes.

  1. The individual received, acquired, or engaged in financial transactions involving money or tangible property that he or she understood to have resulted from a controlled substance offense.
  2. He or she did so to conceal or disguise the source, ownership, or control of the money.
  3. The amount of money laundered totaled more than $25,000 over a 30-day period.

 

table with drugs, money, and a pistol on top

 

Illustrative Examples

 

Example A.

 

Michael sells cocaine. One week he deposits $10,000 into a single bank account. He intends to use that drug money to pay his living expenses over the next two months.

Under California State Health and Safety Code 11370.9, Michael cannot be convicted for two reasons. First, he did not attempt to conceal the origin of the money that he deposited into a bank. Second, he only deposited $10,000, which is less than the required amount of $25,000.

 

However he may very well be charged under California State Penal Code 186.10.

Michael made a deposit to a bank account that totaled more than $5,000, and he understood the money came from criminal activity.

 

 

Example B.

 

A related example  involves Michael and his cocaine business. Over the next month, Michael sells $40,000 worth of cocaine, and now has $40,000 in cash. Michael understands the inherent risk of carrying that much cash. However, he also knows that he cannot deposit $40,000 of illegal money into a bank account.

Michael makes a deal with his friend Scott. Scott owns a pawn shop, and can use the cash to stock the register. Michael agrees to give Scott $40,000 in cash. In return,  Scott will give Michael $40,000 in the equity of his pawn shop.

 

The prosecution could not charge Michael under California State Penal Code 186.10 because he never made a transaction through a financial institution.

The prosecution could charge Michael under Health and Safety Code 11370.9 because he engaged in financial transactions designed to hide the origin of illegal money derived from a drug crime. Plus, the total amount of money totaled more than $25,000.

 

 

Example C.

Yet another way money laundering can be conducted is exemplified by Michael’s cocaine business. After selling $40,000 worth of cocaine, he recognizes that he needs to get rid of the cash. On January 1st, he approaches a gold dealer and purchases $20,000 in gold. On February 19th, he spends the other $20,000 on gold from the same gold dealer.

 

Although Michael engaged in transactions designed to conceal the origin of his cocaine money, he could not be convicted of money laundering.

Michael only purchased $20,000 in one month, and his transactions never totaled more than $25,000 in a 30 day period. Therefore, Michael cannot be convicted under Health and Safety Code 11370.9.

Michael also cannot be convicted under Penal Code 186.10 because the transactions involved a gold dealer, and not a financial institution.

 

 

Penalties of California Money Laundering

 

The State of California considers both forms of money laundering to be wobblers. This means the prosecution may pursue either misdemeanor or felony charges for money laundering depending on the defendant’s criminal history, and on the specific facts of the case.

 

Misdemeanor penalties for either form of money laundering include the following:

  • Up to one year in county jail
  • Fines of up to $1,000

 

The felony penalties for Penal Code 186.10, General Money Laundering, include the following:

  • Jail time of from 16 months to 3 years
  • Fines of up to $250,000 or twice the amount of money laundered, whichever sum is greater
  • The maximum fines increase if the defendant has any prior money laundering convictions.
  • The maximum prison sentence increases if the total amount of money laundered is more than $50,000.

 

The felony penalties under California State Health and Safety Code 11370.9, Controlled Substances Money Laundering, include:

  • Prison sentences of from 2 to 4 years
  • Fines of up to $250,000, or twice the amount of money laundered, whichever sum is greater

 

laundromat

 

Understanding Money Laundering in California

 

Money laundering covers any process designed to obscure the origin of illicitly obtained money.

 

The State of California recognizes two forms of money laundering. Penal Code 186.10 concerns money laundering related to any type of criminal activity, while Health and Safety Code 11370.9 pertains to money laundering related to any drug crime.

 

The State of California considers both crimes to be wobblers. Consequently, the prosecution can pursue either felony or misdemeanor charges.

 

The misdemeanor penalties include county jail time of up to one year, and fines of up to $1,000.

 

On the other hand, felony money laundering charges include penalties of from 16 months to four years in prison, as well as fines of up to $250,000, or twice the amount of money laundered, depending on which sum is greater.

 

 

Defending Against Money Laundering Charges in Callifornia

 

Regardless of the money laundering charge, experienced criminal defense attorneys can mount the most effective legal defenses.

 

Money laundering convictions under Penal Code 186.10 require both intent and knowledge. Experienced defense attorneys can show that the defendant neither intended to promote criminal activity, nor understood that the money came from criminal activity.

 

Because conviction under Health and Safety Code 11370.9 requires an intent to hide the source or owner of drug proceeds, the prosecution must prove that the defendant both knew the source of the funds, and intended to hide it.

 

The amount of money laundered determines whether the prosecution can pursue money laundering charges. If the defendant did not make his transactions with the required amount of money as defined by law, he or she may not be convicted of money laundering.

 

One of the most important factors of any criminal charge pertains to police behavior. An experienced criminal defense attorney can examine the timeline, research the situation, and accurately understand the series of events. If the defense attorney discovers police misconduct, such as illegal searches or seizures, then all evidence against the defendant becomes inadmissible.

 

Working with an aggressive defense attorney can lead to the most successful outcome for defendants accused of money laundering crimes.

Immigration Courts

Criminal convictions can drastically affect immigration status for non-American citizens or for lawful permanent residents (LPR). The forms of criminal behavior can range from the most severe aggravated felonies to basic traffic infractions. Moreover, the penalties for non-American citizens can include deportation, jail time, and fines. The long-term impact for minor crimes can result in catastrophic outcomes for those convicted.

 

In most cases after a conviction, the individual serves time in jail. Following the jail sentence, Immigration and Customs Enforcement (ICE ) agents take the LPR to immigration court.

 

While the criminal consequences for a conviction can cause extreme hardship for the defendant, LPR’s also face the possibility of deportation.

 

The immigration court system does not follow the same protocol as the criminal court system, and does not need to adhere to the same standards. Because immigration court is included under the executive branch of the government, those protocols and standards often shift with each president’s political leanings.

 

To effectively defend themselves against deportation resulting from a criminal conviction, accused individuals must educate themselves and hire skilled criminal defense attorneys to stop the problem before it starts.

 

diverse hands over an american flag

 

Aggravated Felonies

 

For most criminal convictions, LPRs do not face deportation. However, aggravated felonies can result in deportation if the defendant also loses the deportation case in immigration court.

 

Defense Attorney Darren Kavinoky explains aggravated felonies as follows:

“On the immigration front, misdemeanors are usually not a problem… it is ‘aggravated felonies’ (a felony for which the sentence is more than a year in custody) that will get you deported.  In that scenario, AFTER you serve your time, ICE comes to get you and brings you to the immigration court, where you wait in custody until a judge rubber stamps your deportation order and sends you back to your home country.”

 

 

Types of Aggravated Felonies

 

The Immigrant Legal Resource Center describes the types of offenses qualifying as aggravated felonies as follows:

 

 

Aggravated Felony (AF)

 

This conviction generally has the worst immigration consequences.

The AF definition in 8 USC § 1101(a)(43) includes twenty-one provisions that describe hundreds of offenses, including some misdemeanors. Some, but not all, of these offenses require a sentence of a year or more in order to be an AF. The government considers aggravated felons to be deportable and ineligible to apply for most forms of discretionary relief from deportation, including asylum, voluntary departure, and cancellation of removal, and to be subject to mandatory detention without bond. A conviction for illegal reentry after removal carries a higher federal prison term based on a prior AF conviction,

 

 

Crime of Violence (COV)

A COV conviction carries two potential immigration penalties. If it is committed against a person protected under the State’s domestic violence laws, a COV becomes a deportable “crime of domestic violence.” (See paragraph below on the grounds for domestic violence deportation  under 8 USC § 1227(a)(2)(E). If a sentence of a year or more is imposed, a COV falls under the aggravated felony category, regardless of the victim.

 

 

Crime Involving Moral Turpitude (CIMT)

 

Federal immigration case law determines whether an offense involves moral turpitude, not state cases. The State notoriously defines CIMT rather vaguely, and many immigration attorneys subject it to much litigation. It includes crimes that include intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. In also includes some offenses involving lewdness, recklessness, or malice.

 

 

Controlled Substance Offense (CS)

A non-citizen becomes deportable and inadmissible if convicted of an offense “relating to” a federally defined controlled substance. The State grants exceptions to deportations, with a possible waiver of inadmissibility, if the conviction relates to a single incident involving simple possession, use, or possession of paraphernalia involving 30 grams or less of marijuana or hashish under H&S C § 11377.

 

 

Conviction of a Crime of Domestic Violence, Child Abuse, Neglect or Abandonment, or  Stalking, with a Civil or Criminal Court Finding of Violation of a DV Stay-Away Order or Similar Order

 

These all trigger deportability under grounds of “domestic violence” under 8 USC § 1227(a)(2)(E). The conviction, or the conduct that violated the protective order, must have occurred after admission and after Sept. 30, 1996. The State considers a crime of domestic violence to be a “crime of violence” against a person protected from the defendant’s acts under state domestic violence laws. If a court finds an individual in violation of a portion of a domestic violence protective order whose purpose is to protect against threats or repeated harassment, that individual becomes deportable. This includes even the most minimal violation of a stay-away order.

 

 

Firearms Offenses

 

A non-citizen becomes deportable under 8 USC § 1227(a)(2)(C) if he or she can be, at any time after admission, convicted of an offense relating to a firearm. Also, the State considers convictions for the sale of firearms, or for certain offenses such as being a felon in possession, as aggravated felonies. However, no California offense that uses the definition of “firearm” under PC § 16520(a) carries these consequences because the California and federal definitions of “firearm” differ.

 

 

Crimes against a Minor that Block Family Visa Petitions

 

If the State convicts any LPR or United States citizen of certain crimes against a minor, the government can prevent him or her from attaining lawful status for an immigrant spouse or child (through filing a “family visa petition.”) The crimes include kidnapping, false imprisonment, offenses involving sexual conduct, or child pornography under the Adam Walsh Act.

 

 

Types of Consequences for Aggravated Felony Convictions

 

For individuals with LPR status, Aggravated felony convictions can lead to a litany of severe consequences as described by the American Immigration Council.

 

 

Deportation without a Removal Hearing

 

The courts provide fewer legal protections to certain non-citizens convicted of an “aggravated felony” than for other immigrants. Any non-LPR immigrant convicted of an “aggravated felony” may be administratively deported from the United States without a formal hearing before an immigration judge. Immigrants in these proceedings lose eligibility for asylum or for any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.

 

 

Mandatory Unreviewable Detention Following Release from Criminal Custody

 

The government mandates that ICE authorities detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. In order for ICE to release the detained immigrants, the detained immigrant must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.”

 

 

Ineligibility for Asylum

 

Any immigrant convicted of an “aggravated felony” loses eligibility for asylum. The government considers asylum a form of immigration relief available to immigrants who suffer or possess a well-founded fear of persecution in their native country. Immigrants convicted of an “aggravated felony” may also lose eligibility for “withholding of removal,” which the government defines as a similar form of relief for non-citizens whose country of deportation threatens their life or freedom.

 

 

Ineligibility for Cancellation of Removal

 

Any immigrant convicted of an “aggravated felony” loses eligibility for “cancellation of removal” (“cancellation”). Cancellation occurs when immigration judges permit otherwise deportable immigrants to remain in the United States. Immigrants convicted of an “aggravated felony” lose eligibility for cancellation of removal, even if their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who legally resides in the United States.

 

 

Ineligibility for Certain Waivers of Inadmissibility

 

Certain LPRs may not obtain a “waiver of inadmissibility” under Section 212(h) of the Immigration and Nationality Act (INA) if the State convicts them of an “aggravated felony”. A waiver of inadmissibility excuses immigrants for past misconduct that would normally make them ineligible for admission to the United States. Only prospective LPRs whose deportation would cause “extreme hardship” to a U.S. citizen or LPR qualify for waivers of inadmissibility.

 

 

Ineligibility for Voluntary Departure

 

An immigrant convicted of an “aggravated felony” loses eligibility for “voluntary departure.” Voluntary departure allows otherwise deportable immigrants to leave the country of their own accord. These immigrants may leave at their own expense in place of formal deportation under an order of removal.

 

 

Permanent Inadmissibility Following Departure from the United States

 

An immigrant removed from the United States after being convicted of an “aggravated felony” (or who leaves while an order of removal is outstanding) may never reenter the country. To lawfully reenter the United States, such an immigrant must receive a special waiver from the Department of Homeland Security and must meet all other requirements of admissibility.

 

 

Enhanced Penalties for Illegally Reentering the United States

 

If ICE removes an immigrant from the United States following a conviction for an “aggravated felony,” and that same immigrant subsequently reenters the country illegally, he or she may be imprisoned for up to 20 years rather than two years.

hands on prison bars

 

 

Understanding Immigration Court

 

If the State convicts individuals with LPR status of a crime, the defendant may also face deportation in immigration court. The sole purpose of immigration court is to determine whether the State will deport a non-American citizen, or whether the individual may stay in the United States.

 

Immigration court functions under the United States Department of Justice, which falls under the executive branch of the federal government. However, it is the Attorney General of the United States who ultimately determines the tone and practice of immigration courts.

 

The United States Department of Justice grants to immigration courts the responsibility for adjudicating immigration cases in the United States. The primary function of immigration courts revolves around removal proceedings.

 

While immigration courts do handle criminal matters, the government considers them to be civil courts. This is because the only thing that immigration courts decide is whether or not the defendant can stay in the United States. In these courts, the federal government does not need to provide legal representation to defendants who cannot afford a lawyer. The University of Pennsylvania Law Review conducted a study in 2015, and found that only 37% of immigrants attain legal representation. It also found that children from two to 17 years of age routinely represent themselves in immigration court.

 

 

Current State of Immigration Courts

 

In 2016, the New York Times wrote an article describing the current state of immigration courts. The wait times for trials in immigration courts can range from two to five years. Consequently, evidence pertaining to the case becomes stale, and helpful witnesses may leave, forget vital pieces of information, or even die from old age.

 

The United States only has 58 immigration courts across the lower 48 states. During the last two decades, a surge in immigration from Central America has caused an increase in immigration enforcement. However, due to bureaucratic red tape, the courts cannot hire enough judges fast enough.

 

Although immigrant courts are dealing with relatively simple issues, the consequences of those issues have had effects greater than anyone could have expected. Basically, the United States deports people who lose immigration court hearings. Period.

Regardless of how the defendant’s life will be impacted, the court abides by the rules.

 

According to the United Nations, since 2008 there has been a five-fold increase in asylum seekers from Central America’s Northern Triangle, which includes Honduras, Guatemala, and El Salvador. Organized gangs dominate this landscape. According to the U.N., Honduras had the world’s highest murder rate in 2014, with El Salvador and Guatemala close behind.

 

border patrol agent in the desert

 

Laura S.

 

The New Yorker ran an article entitled “When Deportation is A Death Sentence” in its January 2018 issue. The article told of an incident that occurred in June 2009 involving a young woman in Pharr, Texas named Laura S. Pharr, Texas lies directly across border from the Mexican town of Reynosa. The U.S. State Department forbids its employees from venturing out after midnight in this area due to the extreme violence in Reynosa.

 

Laura fled an abusive husband in Reynosa and began to build a life in Pharr with her daughter from the relationship. A police officer pulled Laura over one night while she was on her way home from her waitress job. When the officer asked to see her license and proof of insurance, she could not provide them. The 22-year-old Laura was living in the U.S. as an undocumented immigrant.

 

Laura told the officer as she began to cry, “I have a protection order against my ex—please, just let me call my mom and she’ll bring you the paperwork.”

In Mexico, her former husband had reportedly joined a local drug cartel and frequently texted death threats to Laura.

 

The border patrol agents pressured her into signing “voluntary return” paperwork. After sunrise, she began her walk across the McAllen-Hidalgo International Bridge to Reynosa.

 

In the final moments before Laura crossed the bridge, she turned to the border patrol agent and said, “When I am found dead, it will be on your conscience.”

 

the scales of justice

 

Criminal Charges in Immigration Courts

 

Laura S. represents how broken the immigration courts have become over the last 20 years. Because the courts take too long to actually hold a hearing, they pass this responsibility on to border patrol agents. While border patrol agents perform a vital function in protecting the U.S. from violent people attempting to enter the country, they are NOT trained and vetted court judges. The outcome of many deportation cases often leads to more extreme consequences than mere removal from the U.S.

 

All immigrants charged with criminal activity must act quickly and aggressively during the criminal proceedings to ensure the best outcome. Experienced defense attorneys know how to fight criminal charges and obtain the best solution for the defendant.

California Theft by False Pretenses

California Penal Code 532 defines theft by false pretenses. The state prohibits people from making false promises, thereby convincing someone else to give up their property.

People often think of theft as forcibly taking property belonging to others. In other words, someone takes property against the will of another person or entity. On the other hand, theft by false pretenses involves someone willfully giving up his or her property. However, he or she does this only because of false information deliberately provided by another person or entity. Some may describe this crime as theft through deception.

The penalties for theft by false pretenses are determined by the value of the stolen property. The state may classify the crime as petty theft if the value of the property stolen is assessed at less than $950, or as grand theft if the property is assessed at more than $950. Grand theft also includes firearms and automobiles. Grand theft convictions carry penalties of up to three years in state prison plus fines, while petty theft penalties include up to six months in jail plus fines.

The 2002 Movie Catch Me if You Can is based on Frank Abignale Jr.’s semi-autobiographical book of the same name, and depicts a young man stealing $2.5 million before his 21st birthday. He used confidence tricks and false pretenses to steal every cent.

 

man counting cash and cell phones

 

Defining Theft By False Pretenses in California

 

Theft by false pretenses in the State of California is outlined in Penal code 532, which defines a few key elements.

  • The defendant intentionally deceived the victim through false pretenses or misrepresentation.
  • The defendant did so in order to receive money or property from the victim.
  • The victim relied on the false pretenses or false representation of the defendant.

AND

  • The defendant actually misrepresented himself or herself, or made promises under false  pretenses.

The prosecution can illustrate false pretenses through any of the following:

    1. A false token
    2. A written note regarding the false pretenses signed by the defendant
    3. The testimony of two witnesses regarding the defendant’s false pretenses
    4. The testimony of one witness plus corroborating evidence

 

 

Example

 

A very real-world example of theft by false pretenses is illustrated by the Bre-X mining scandal , which occurred during the early to mid-1990’s. A Canadian gold mining company purchased a mine in Indonesia which initially produced a very limited amount of gold. Consequently, the company began to fail. However, one of the workers at the company began to “salt” the daily core samples. As a result, Bre-X began to accumulate more investors, and more money, but ultimately collapsed after the crime surfaced.

A core sample is “salted” by adding other, more valuable, minerals to the sample – in this case, gold. Salting the core samples of this particular mine indicated a much higher quantity of gold than there actually was.

Bre-X lied about the mine’s success to attract new investors. Moreover, the company convinced investors to continue supporting their failing mine through deceit. Bre-X leveraged their fraudulent core samples to acquire more investors for the struggling company.

large mining rig

Elements of The Crime

 

Convicting someone of theft by false pretenses requires the prosecution to prove the elements of the crime.

 

Element One

The first element concerns deliberate deceit. The defendant must have known that what he or she said was false, and have had the intent to convince the other person that it was true.

“False pretenses” can include:

  1. Making a reckless statement without checking its validity or the validity of any supportive facts of the statement
  2. Withholding critical information under the circumstances
  3. Making promises without any intent to keep them

 

Hypothetical Example

Tammy begins to produce what she describes as a panacea, In reality, however, there is no scientific evidence to support her claims. She convinces a person suffering from cancer to purchase her chemical compound with the promise that it will cure cancer. Tammy is guilty of theft by false pretenses even if she didn’t positively know her claims were not true. She recklessly claimed that her chemical compound could cure diseases without any scientific evidence.

Element Two

The second element involves fraudulent end goals. The defendant must intend to persuade the victim to give up his or her property to the defendant.

Deception for another purpose does not qualify as an adequate element of this crime

Example

Ryan is curious about human behavior. He decides to pretend to be Jesus Christ and to go about announcing the Second Coming – simply to observe people’s reactions. Eventually, this gains traction on the internet and he becomes a well-known public figure within a certain demographic. As a result, people begin to send him money with no solicitation on his part. Ryan is not guilty of theft by false pretenses because he never intended to persuade anyone that he was Christ, nor  did he request that property be given to him.

 

Element Three

 

The third element involves trust. The defendant’s lies must be believed by the victim. The victim  must have given up his or her property because of false information deliberately given by the defendant. If the victim knew the individual was lying, and then chose to give up his or her property, it is more difficult to prove a case of theft by false pretenses.

 

A skilled defense attorney will be able to accurately assess the victim’s motives in this situation. After examining the relationship between the  defendant and the victim, a good defense lawyer will devote adequate resources to investigating both parties. The defense attorney will accurately analyze the facts, and will be able to show that the victim did not give the property based on the defendant’s statements, but for some other reason, thus removing the fault from the defendant.

Element Four

 

The fourth element involves a deliberate lie. The individual must cause the victim to believe in his or her lie through some means.

The law recognizes four ways to illegally acquire trust in a theft by false pretenses case.

  1. A “false token” could be counterfeit money or some related item supporting the false pretenses.
  2. Any note or documentation of the false pretenses signed or handwritten by the defendant.
  3. Testimony from two witnesses that supports the false pretenses.
  4. Testimony from one witness, together with supporting evidence that indicates the false pretenses.

 

close up of a $100 bill

 

Fighting Theft by False Pretenses in California

Building a defense against theft by false pretenses charges can be challenging. However the prosecution has the burden of proving the defendant’s intent to deceive. The defendant may genuinely believe in what he or she said, and therefore never intended to deceive the victim. Moreover, the defendant may have misunderstood the situation and the facts surrounding it. A skilled defense attorney can introduce enough reasonable doubt to prevent the prosecution from attaining a conviction.

Another key factor of theft by false pretenses involves the victim relying on the defendant’s word and acting accordingly. If the victim fully understood the situation, the risks involved, and the defendant’s intent, then the victim did not rely on the defendant’s lie. If the victim did not rely on the defendants actions, then the defendant cannot be convicted of theft by false pretenses.

The penalties for theft by false pretenses are the same as for other forms of theft, and vary according to whether the charge is a misdemeanor or a felony. Theft of property valued at $950 or less is considered petty theft.

 

Penalties for Theft by False Pretenses in California

 

Theft of property valued  at more than $950, or of a car, a firearm, or livestock, is considered grand theft under California State Penal Code 532. Grand theft is considered a wobbler crime, meaning that the charge will be determined by the specific circumstances of the case, as well as by the defendant’s criminal history. However, the State of California will always charge any theft of a firearm or automobile as a felony.

 

The penalties for misdemeanor petty theft include

  1. Up to 6 months in county jail
  2. Fines of up to $1,000

 

The penalties for misdemeanor grand theft are:

  1. Up to 1 year in county jail
  2. Fines of up to $1,000

 

The penalties for felony grand theft are:

  1. 16 months to 3 years in state prison
  2. Fines of up to $10,000

 

man using a debit card

 

Understanding California Theft By False Pretenses

 

Those facing a charge of theft by false pretenses owe it to themselves to seek the most skilled defense attorney possible in order to fight the charges, and to find a successful outcome.

 

The State of California prohibits theft by false pretenses as outlined in California Penal Code 532. Theft by false pretenses can also be described as a con, or confidence trick.

 

The state must prove that the defendant carried out a few specific elements of the crime:

First, the defendant intentionally deceived the victim through a lie.

Second, the defendant lied in order to gain the victim’s trust and to receive property from the victim.

Third, the victim relied on the lie.

Finally, the defendant actually misrepresented himself or herself or made promises under false pretenses.

 

Working with an experienced legal team can make all the difference, both in a catastrophe and in a minor inconvenience. The defendant may have had genuinely good intent. Determining what other people are thinking, or thought, is not possible due to the current limitations of science and technology. The prosecution must prove intent to deceive. Since everyone makes mistakes, and since circumstances may change dynamically, proving intent to deceive is more challenging than it may appear at first glance.