Tuesday, December 29, 2009

California Penal Code Section 496(a) - receipt of stolen property

(a) Every person who buys or receives any property that has
been stolen or that has been obtained in any manner constituting
theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling,
or withholding any property from the owner, knowing the property to
be so stolen or obtained, shall be punished by imprisonment in a
state prison, or in a county jail for not more than one year.
However, if the district attorney or the grand jury determines that
this action would be in the interests of justice, the district
attorney or the grand jury, as the case may be, may, if the value of
the property does not exceed four hundred dollars ($400), specify in
the accusatory pleading that the offense shall be a misdemeanor,
punishable only by imprisonment in a county jail not exceeding one
year.
A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both
pursuant to this section and of the theft of the same property.

Receipt of Stolen property is a fairly straightforward crime. The
prosecution must show that the individual bought or received the
property knowing that it is stolen or extorted property. The
prosecution can also show that the person either hid, concealed or
helped hide or conceal the property knowing it was stolen or extorted.

The statute gives the grand jury or the prosecution the discretion
to charge the crime as a misdemeanor instead of a felony if the
pursuit of justice would be served and the amount is less than $400.00
If this is the case, jail time up to one year may be imposed.

Lastly, the individual who committed the theft can be convicted under
this section but cannot be convicted under this section and
for theft of the same property.

Thursday, December 17, 2009

Enhancements

Enhancements are a very powerful tool for the prosecution to use against the defendant in a criminal trial. An enhancement increases the amount of time that a defendant will spend in prison. The most common examples of enhancements are priors and gang relations.

Priors are straightforward, have you the defendant committed or been convicted of any prior felonies? If so, your sentence will be increased for each prior that you committed. For example, lets say you have committed three prior felonies and you are now out of prison and not on parole. You commit a new crime and are found guilty. Lets say the sentences is for one year. The judge will be required to add three (3) years to your sentence; one for each prior you have committed. This gives the prosecutor a lot of ground on which to negotiate against the defendant.

Gang enhancements are a little different. A gang enhancement can make a simple misdemeanor a felony offense. This means you could easily serve years in prison for something as simple as shoplifting. This tool is abused by the prosecution because the definition of a gang is vague. In general if you are a minority the prosecution will try to get a gang enhancement to be added to your charges. One's connection to a gang can be old or no longer exist. The prosecution doesn't care because getting convictions is all that matters to them. The prosecution has to show that the crime was committed on the behalf or for the benefit of the gang.

This sounds like it would be hard to prove for a person that left a gang 5 years ago, but if you have tattoos or other distinctive markings from a gang you are an easy target for the prosecution. The police and prosecution have wide latitude on what the present and how to convince the jury that you are a gang member.

As a general rule, enhancements make it much harder for a defendant to get a fair trial or for their counsel to get a good deal for their client.

Thursday, December 10, 2009

California Penal Code section 451 (arson)

A person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned
or who aids, counsels, or procures the burning of, any
structure, forest land, or property.
(a) Arson that causes great bodily injury is a felony
punishable by imprisonment in the state prison for five,
seven, or nine years.
(b) Arson that causes an inhabited structure or
inhabited property to burn is a felony punishable by
imprisonment in the state prison for three, five, or eight
years.
(c) Arson of a structure or forest land is a felony
punishable by imprisonment in the state prison for two,
four, or six years.
(d) Arson of property is a felony punishable by
imprisonment in the state prison for 16 months, two, or
three years. For purposes of this paragraph, arson of
property does not include one burning or causing to be
burned his or her own personal property unless there is
an intent to defraud or there is injury to another person
or another person's structure, forest land, or property.
(e) In the case of any person convicted of violating
this section while confined in a state prison, prison road
camp, prison forestry camp, or other prison camp or prison
farm, or while confined in a county jail while serving a
term of imprisonment for a felony or misdemeanor conviction,
any sentence imposed shall be consecutive to the sentence
for which the person was then confined.

In California an individual can face serious jail time for
committing arson. Under the code, a person is guilty of arson
if they willfully or maliciously set fire to or burn or cause
to burn or who aids in the process of one of three things:
a structure
a property
a forested land

If great bodily injury occurs the individual is looking at
5,7,9 years. If it is an inhabited structure or property the
individual is looking at 3,5,8 years.
If it is a structure or forest land the individual is
looking at 2,4,6 years.
If it is property the person is looking at 16 months, 2,3 years.

The prosecution will have to prove beyond a reasonable doubt
that the individual set fire or burned the structure/property
intentionally/on purpose or in a manner that was so reckless
that criminal intent can be inferred (e.g. using gasoline to
start a fire on a wooden floor in a home to burn trash). The
prosecution will also have to prove that there was damage to
the property from the fire, but more than smoke damage.

Tuesday, December 8, 2009

California Vehicle Code Section 23152

23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.


The above quoted language is one of the most common vehicle code violations an individual is charged with. This is the category that most if not all people charged with a DUI or DWI fall into. The person is generally charged under section (a) and section (b). The section states that there is a presumption that the person was under the influence, if within three hours of being pulled over and tested, the individual tested a .08 or higher on the test. This presumption is rebuttable, meaning the defendant can overcome the presumption by presenting their own evidence.

Section (c) is applicable to individuals who are using narcoticsor on a drug rehabilitation program that is approved by the Health and Safety code. Section (d) states that it is illegal for a person to drive a commercial vehicle with a blood alcohol content over .04.

Tuesday, November 17, 2009

What you are charged with

When the prosecution brings a case, they charge the defendant with a crime. The prosecution can charge the defendant with anything they want. The defendant could be arrested for drunk driving and the prosecution could charge them with murder one, even though no one died or even got hurt from the drunk driving. Granted the above example is extreme and highly unlikely to ever happen.

However, what is more likely is that the prosecution will charge the defendant with a number of different crimes. The prosecution does this for a number of reasons. One, is that without all the evidence that would be determined during a full investigation leading up to the trial the prosecution does not know what crimes could be proven, so the prosecutor includes a laundry list. Two, the prosecution is attempting to scare the defendant into a plea deal by showing them how much they could be charged with. The later is in reality the stronger reason for a prosecutor to charge a large number of crimes as during the negotiations certain charged crimes will likely be dropped and in the end the defendant will hopefully only serve a sentence for the actual crime he or she committed, no the laundry list put forward by the prosecution.

A final word regarding charged crimes, while a person can be charged with any crime after being arrested the prosecution will generally only charge the defendant with the crimes which he or she believes can be proven at trial.

Thursday, November 12, 2009

Parties to a Criminal Case

In a criminal case there are a number parties. There is the prosecution, the defense, the judge, jury, and the victims. The judge is ideally the neutral third party who makes sure that all of the parties are acting within the rules and not violating anyone's particular rights. The judge is the individual that makes decisions regarding legal questions (for example a violation of the fourth amendment or if the proper Miranda rights were read). The jury is the group that determines the questions of facts. For example, did the defendant have the requisite mental state of mind needed to be guilty of the charged crime.

The prosecution is the party who prosecutes the accused. The prosecution's client is society and the state. The prosecution's duty is to find justice and if the case goes to trial to prove beyond a reasonable doubt that the defendant is guilty of the crime charged.

The defenses does not technically have to do anything as all the burden is on the prosecution; however, it would be very dangerous to not put forth a defense. The defense will ideally poke holes in the prosecutions case and create doubt in the minds of the jury. By doing so the jury cannot find the defendant guilty beyond a reasonable doubt.

Lastly, the victims also have a limited amount of say in the trial (generally in the sentencing and restitution phase of the trial). The victim does not get to control the trial or tell the judge and/or prosecution what to do. The victims rights are largely controlled by Marcy's law.

Thursday, November 5, 2009

Appeals

After the trial and the sentencing there is one more possible step. The defendant can appeal the outcome of the trial. There may be various grounds on which a defendant can appeal the verdict. Some possible appeals include ineffective assistance of counsel, jury misconduct, improper evidence or possibly habeas corpus.

The possible appeals depends on the type of trial you had and what happened during the trial. An appeal can be a very long and tedious process. Once again this depends on the circumstances of the cases. Generally it is very hard to win an appeal.

Lastly, a defendant can appeal the verdict of the case while the prosecution can only appeal in very limited circumstances but in general the prosecution cannot appeal.

When a defendant appeals the verdict the general process is the appeal goes up to the State Court of Appeals, then to the State Supreme Court. If there is a federal issue the case could go to the Federal Court of Appeals and then to the U.S. Supreme Court. Given the number of appeals that are possible this process can be very lengthy, it can drag out for a number of years.

Tuesday, November 3, 2009

Sentencing

Sentencing occurs after the trial is complete. Depending on the type of trial and how it was conducted there may be a trial to determine the sentence. This occurs in a bifurcated trial (a trial with two parts). In the sentencing part of a bifurcated trial the guilt is already determined. The trial is to determine the sentencing aspect of the case.

Sentencing can be surprisingly complex. If a person is guilty of committing a crime for the first time there is one of three levels (amount of time to serve) that can be applied, a minimum, the middle, and high. Generally the court will start with the middle and move towards the minimum or high end depending on the mitigating or aggravating factors of the case.

For example, lets assume you are charged with a crime that has 2, 4, 6 as the sentencing guidelines. This means the middle amount is 4 years - this is where the judge will start for purposes of sentencing. Lets assume there are a large number of mitigating factors and no aggravating factors, in this case the judge is likely to impose the 2 years as the sentence. Now lets assume there are a lot of aggravating factors but no mitigating factors, in that case the judge will likely impose a sentence of 6 years.

Now, things get much more complicated if you have prior strikes or are in a gang. Each of these can have a huge impact on the disposition of you case. These are generally called enhancements and are statutorily required. This means a simple 2 year sentence can end up being 8,10, or 20 years depending on what enhancements you may or may not have. Obviously the more enhancements you have the more time you are looking at serving.

In some cases even if you are found guilty of the underlying crime the judge may impose a stay on your sentence, this means, even though you were found guilty of the crime you will not be serving time unless you violate your parole. Once you violate your parole the sentence will instantly come into effect and you will have to serve your full sentence. A final note is time serve. If you are sentenced to a relatively small amount of time in jail, and you have been in custody, you may be able to leave shortly after you trial (if the trial took a long time) as you have already served a certain amount of time in jail awaiting trial

Thursday, October 29, 2009

Trial

After the preliminary hearing and assuming that no plea negotiations or dismissal occurs, the next step in a criminal case is the trial. A trial is a scary experience in which the defendant places their future in the hands of 12 unknown individuals (if a jury trial) or in the judges hands (bench trial).

A trial has a number of different parts. First is a number of legal determinations, for example what evidence can and cannot be presented to the court, who are going to be witnesses, what jury instructions are going to be used, etc. The first part that you as a defendant will likely see is the jury selection. This is also called vior dire. Both the prosecution and the defense will ask a series of questions to determine if a particular juror can stay or if they will be dismissed from the jury pool. Once all the jurors are picked including any alternates the trial is ready to begin.

The prosecution is the first side to present the case. At this point all of the evidence that the prosecution has against you will be presented. The defense attorney will be able to cross-examine and attack the credibility of the various pieces of evidence or witnesses. After the prosecution rests their case the defense has the opportunity to present their case. Here the prosecution gets the chance to attack the credibility and evidence put forward by the defense.

Once the defense has finished their side of the story, both sides present their closing arguments. After this the jury is read the instructions and asked to make a determination on guilt. The jury will deliberate for however long it takes them to come to a conclusion. Of course the jury may be unable to come to a conclusion and a hung jury could be declared. Other possibilities include a mistrial for tapering with the jury or the juror misconduct. However, generally once the jury determines guilt or innocence the trial is over except for the sentencing. Depending if the trial was bifurcated (broken into two parts) the sentencing could occur right after the trial or a new trial could be held to determine the sentence.

Tuesday, October 27, 2009

Preliminary Hearing

The preliminary hearing is a chance for the prosecutor to demonstrate to the judge that there is a valid case. This means the prosecutor needs to show to the court that there is enough evidence and facts to support going forward with the case. The prosecution will generally present the victim as a witness and any arresting officers. If they have other information/evidence the prosecution will likely present it at this time as well.

The standard of proof for a preliminary hearing is much lower than the standard needed to prove guilt at trial (beyond a reasonable doubt). The prosecution need only show that there is probable cause that the defendant committed the alleged crime.

This is also a stage in which the defendant can attack the credibility or viability of the prosecutions case. The defendant is not able to present any witnesses or evidence in their favor at this point, but he or she can cross-examine the various witnesses presented by the prosecution.

There is a possibility at this point for the whole case to be over, if the prosecution is unable to meet their burden. The prosecution can dismiss the case with leave to file later or can dismiss the case completely. The other possibility is that the judge does not believe the prosecution has met their burden and the case can be dismissed by the judge. This is rare.

Thursday, October 15, 2009

Negotiations

Negotiations are always part of a criminal proceeding. Negotiations can occur from day one to the last minute of the trial. A great deal of the negotiations depends on your attorney and their relationship with the prosecutor. Your counsel will do their best to get you the accused of on probation or on a lessor charge depending on what you have been charged with.

Generally you will get a better deal at the beginning of the trial because the prosecutor has not spent a great deal of time or energy on the prosecution and will likely be lenient. However the prosecutor may be just as willing to give a good deal depending on how the trial is proceeding. There is no easy way to tell which way the negotiations will go. Negotiations can be a long drawn out process or may be quick and simple depending on the charges and if you are willing to plead guilty or wish to take it to trial.

Generally the judge will accept the plea bargain agreed to by the prosecution and the defense. In some cases the judge will not accept the plea and will require the prosecution to take the case to trial.

Tuesday, October 6, 2009

Once you are arrested, what next?

Once you have been arrested, besides certain constitutional rights kicking in, what happens? Depending on the circumstances surrounding your arrest you might be subject to a curb-side line-up. This is when the police detain you at the place of arrest and bring the victim to you. The victim will then likely identify you as the suspect/perpetrator. Sadly, this line-up can be difficult to attack and is highly suggestive to the victim! If the police take you to a person who is arrested and has them sitting on the curb and asks you is this the person who did X to you; it is highly likely the victim is going to say yes.

If there is no curb-side line-up you will be taken to the local police station to be held until your arraignment hearing. This must happen within 72 hours, generally within 48 hours. Generally, it happens the next day unless you are arrested late on Friday or over the weekend and the Courts are closed. At the arraignment hearing, it is likely the public defender - unless counsel has been retained - will appear on your behalf to ask for your release on your own recognizance or for for a reduced bail. If bail is granted you must post bail before being able to leave. It is very important that you are honest with the bondsman and the information they request. If you are not allowed to post bail or the amount is too high you will remain in custody pending you suit. During the arraignment you will be asked to plead guilty, not guilty, no contest, remain mute.

There will be a second arraignment in which the prosecution will put forth evidence against you by calling forward witnesses. Your counsel will be able to cross examine the witnesses for the record. During this whole process, before arraignment and up to and through trial a negotiated plea may be reached between the defendant and the prosecutor. After the second arraignment a trial will occur. If you are found guilty during the trial a sentencing hearing will occur. This is when the judge will determine the amount punishment you must serve for breaking the law. After the sentence has been issued you can take it up on appeal.

Assuming you do not appeal you will serve your sentence. Once the sentence is served your case is over. Of course, one can always later appeal the findings or try and get your record expunged.

Wednesday, September 30, 2009

Constitutional Rights upon arrest

Once you have been arrested a number of constitutional rights kick in, both state and federal. We will discuss the federal as they set forth the bare minimum that must be applied to you as a potential suspect.

First, you have the right to be free from unlawful search and seizures. Originally this meant that the police could only search you if they had a warrant. Over time the requirements for a warrant have decreased dramatically. For example officers are allowed to pat down an individual to determine if they have weapons or other potential contraband as these items pose a danger to the police officer. Another area that has been heavily impacted is an individuals right to be free from search in one's car. In general the officer can search the area that the driver could reach in the car, meaning for most cars the entire passenger and back seats.

For an officer to arrest or detain you, they need to have probable cause to believe that you have committed or attempted to commit a crime. This is a very low standard and an officer will generally have no problem meeting this standard. Officers can look at the surrounding area of the defendant, their demeanor, clothing, personal history (if known), etc. If a person is on probation or parole this standard does not apply.

An individual who is arrested also has to have their Miranda rights read to them. I strongly urge you to invoke those rights and not speak to the police until you are represented by an attorney (private or court appointed). Miranda rights are there to protect you, do not ignore them or waive them until represented!

Closely linked to Miranda Rights are the 5th Amendment right to be free from self-incrimination and the right to an attorney. Pleading the 5th is a right that allows an individual to not make statements that are incriminating. Be careful when invoking this right, if you start talking about some other crime or open the door to new questioning by the police you can waive this protection. The 6th Amendment right to counsel is only based on the crime that one is charged with. This right guarantees that one will have an attorney present at critical stages of the criminal proceedings.

There are other rights that attach when one is arrested but the above are probably the most visible and arguably the most important.

Tuesday, September 22, 2009

How it all starts

The first part of any criminal proceeding is always the commission of a crime. You the defendant may or may not have committed the crime. The police or any other executive agency will, generally, not conduct an investigation without a crime having occurred or still occurring. They do not have the manpower or resources to conduct a pro-active investigation. Furthermore, under our system a person cannot be guilty of a crime they have not committed. Criminal law is reactive and punishes actions done.

Once a crime has been committed a number of agencies may get involved in the investigation. Generally it is just the state police, but may include the FBI or ATF to name a few. These executive branch agencies are trained and equipped to conduct extensive investigations into criminal acts.

Lets assume you have been picked up by the police on any number of charges. At this point if you are being arrested the officer must read you your Miranda rights. I urge you to invoke your constitutional right and remain silent and request an attorney. Once you have been arrested a large number of constitutional provisions kick in, which will be discussed in the next posting.

Tuesday, September 15, 2009

Purpose of the Blog

This blog is designed to provide information for individuals or family members of individuals who have been accused of a crime what to expect during the criminal proceedings. The information provided here will also cover some of the most common types of crimes. It needs to be understood that the elements the prosecution needs to prove and the criminal procedure may vary from state to state. However, general characteristics will be occur across the board.

The information provided in this blog is not intended to be legal advice and is solely for informational purposes and if you or a loved one is in custody or charged with a crime seek competent legal counsel for advice. Any postings on this blog do not create a client/attorney relationship and as stated above only constitutes general information.