Theft/Dishonest crimes

The next series of blogs will cover theft/dishonest crimes. For example, theft, embezzlement, forgery, possession of stolen property, etc. These crimes can carry significant jail time, but they also have the added detriment of being crimes involving moral turpitude when dealing with immigration. It is important to note that if an individual is convicted of a crime involving moral turpitude it may prevent any immigration benefits for the alien or the alien's spouse.

CA Penal Code 472 states as follows:

Every person who, with intent to defraud another, forges, or counterfeits the seal of this State, the seal of any public officer authorized by law, the seal of any Court of record, or the seal of any corporation, or any other public seal authorized or recognized by the laws of this State, or of any other State, Government, or country, or who falsely makes, forges, or counterfeits any impression purporting to be an impression of any such seal, or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery.

One of the key elements of forgery is that a person intents to defraud, forge or counterfeit the seal of certain organizations/corporations of public institutions that are recognized by the state of California. PC 472 further includes any impressions of these seals. Lastly, anyone who has in his/her possession of the counterfeited seal or impression, knows it is counterfeited and willfully conceals it is guilty of forgery.

As you can see the list is pretty expansive and can include some innocent sounding activities. Anyone that is in possession of a forged social security number or driver's license could be charged with this crime.

Violating Probation

Probation is often granted in misdemeanor and felony cases. Probation is generally preferable to incarceration. During probation the defendant must abide by the terms and conditions of probation. If you fail to abide by these terms and conditions you have violated your probation. You only need to violate one of your terms and conditions to be in trouble, you do not need to violate them all.

A violation can be something as small as drinking a beer or as big as violating a restraining order! Either of these will get you in trouble. Once you have violated your probation you are looking at possible jail time. Depending on the terms and conditions and your underlying crime you may look at getting probation reinstated or you are looking at incarceration. A great deal of this depends on your D.A. and the court you are in. Sometimes it is possible to get a serious violation dropped and a minor one to replace it and you go back on probation. Other times you are going to go to jail no matter what your attorney does. Remember, you broke the terms and conditions of your probation and while your attorney may be good they cannot change the fact that you violated probation.

If you are accused of violating probation you have the right to a Vickers hearing. This is a hearing in which the state has to prove by a preponderance of the evidence (50.01%) that you violated the probation. Furthermore, the rules of evidence are much more lax and hearsay and other forms of evidence can be admitted into the hearing. It is uncommon for a person to prove that they did not violate probation.

One of the worst things about violating probation is that you may be facing more time in custody than you would have than if you had done straight time after sentencing.

Readiness Conference

Rule 4.112. Readiness conference

(a) Date and appearances

The court may hold a readiness conference in felony cases within 1 to 14 days before the date set for trial. At the readiness conference:

(1)All trial counsel must appear and be prepared to discuss the case and determine whether the case can be disposed of without trial;

(2)The prosecuting attorney must have authority to dispose of the case; and

(3)The defendant must be present in court.

At a Readiness Conference, which may also be called a pre-trial conference, all parties discuss the case and try to determine if it can be settled before going to trial. The parties will also discuss any issues that may come up during the case or any legal matters that are pending. If the parties are unable to come to a settlement a trial date may be confirmed or a party may ask for an extension. A readiness hearing may be only a formality in certain cases (both parties are ready to go forward and it has been determined that a settlement is not an option).

PC 417(a)(1) (brandishing a weapon)

California Penal Code section 417 states:
(a) (1) Every person who, except in self-defense, in the
presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly weapon other
than a firearm in any fight or quarrel is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than 30
days.
  Under PC 417(a)(1) a person is guilty of a misdemeanor if they
draw or exhibit any deadly weapon (knife, bat, machete, switch-blade,
broken bottle, crowbar, etc.) that is not a firearm in a rude,
angry or threatening manner.  The individual is also guilty of a
misdemeanor if they unlawfully use a deadly weapon (except a
firearm) in any fight or quarrel.
  The punishment for this is a minimum of 30 days in county jail.

CA Penal Code Section 484(a)

Under California Penal Code Section 484(a) a person commits
theft if:
(a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who
shall fraudulently appropriate property which has been
entrusted to him or her, or who shall knowingly and
designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real
or personal property, or who causes or procures others to
report falsely of his or her wealth or mercantile character
and by thus imposing upon any person, obtains credit and
thereby fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is
guilty of theft. In determining the value of the property
obtained, for the purposes of this section, the reasonable
and fair market value shall be the test, and in determining
the value of services received the contract price shall be
the test. If there be no contract price, the reasonable and
going wage for the service rendered shall govern. For the
purposes of this section, any false or fraudulent
representation or pretense made shall be treated as
continuing, so as to cover any money, property or service
received as a result thereof, and the complaint, information
or indictment may charge that the crime was committed on any
date during the particular period in question. The hiring of
any additional employee or employees without advising each
of them of every labor claim due and unpaid and every
judgment that the employer has been unable to meet shall be
prima facie evidence of intent to defraud.

The current law got rid of the various common law definitions
that used to be presented to juries.  Today, theft includes
theft by trick, theft by larceny, embezzlement, fraud, and
other forms of obtaining property of another in which you do
not have a valid claim to.  California Penal Code 484
contains more parts but I wanted to focus on 484(a) as it
defines the various types of theft.

Theft has traditionally been defined as the larcenous taking
of the personal property of another with the intent to
permanently deprive.  Today, this definition is included in
section 484, but it was expanded to include embezzlement and
other crimes.  For a conviction based on 484, the jurors only
have to convict based on any one of these crimes, they need
not agree or convict on all the discussed crimes.

H&S 11350 Possession of a controlled substance

(a) Except as otherwise provided in this division,
every person who possesses (1) any controlled
substance specified in subdivision (b) or (c), or
paragraph (1) of subdivision (f) of Section 11054,
specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or specified
in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV,
or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or
veterinarian licensed to practice in this state,
shall be punished by imprisonment in the state prison.
  (b) Except as otherwise provided in this division,
every person who possesses any controlled substance
specified in subdivision (e)of Section 11054 shall be
punished by imprisonment in the county jail for not
more than one year or in the state prison.
  (c) Except as otherwise provided in this division,
whenever a person who possesses any of the controlled
substances specified in subdivision (a) or (b), the
judge may, in addition to any punishment provided for
pursuant to subdivision (a) or (b), assess against
that person a fine not to exceed seventy dollars ($70)
with proceeds of this fine to be used in accordance
with Section 1463.23 of the Penal Code. The court
shall, however, take into consideration the defendant'
s ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the
fine permitted under this subdivision.
  (d) Except in unusual cases in which it would not
serve the interest of justice to do so, whenever a
court grants probation pursuant to a felony conviction
under this section, in addition to any other
conditions of probation which may be imposed, the
following conditions of probation shall be ordered:
  (1) For a first offense under this section, a fine
of at least one thousand dollars ($1,000) or community
service.
  (2) For a second or subsequent offense under this
section, a fine of at least two thousand dollars
($2,000) or community service.
  (3) If a defendant does not have the ability to
pay the minimum fines specified in paragraphs (1) and
(2), community service shall be ordered in lieu of the
fine.

Possession of a controlled substance can be a difficult
case to win/fight.  The list of controlled substances
is fairly long and includes both legal and illegal
substances.  The legal substances are included if you
do not have a proper prescription for certain types of
professional. 

Punishment for this offense can include up to three years
time in custody, both state or local.  There are also
options for a drug diversion program if this is your
first offense.  Probation may be granted depending on the
circumstances of your offense.  Probation will include
a fine unless you are unable to pay it (in which case
you can likely do community service instead).

A lot of what happens in these types of cases depends on
how the officers discovered the controlled substance and
if you knew the controlled substances were in your
possession (which is a difficult proposition to fight if
it was in your pocket or in an easily reached spot).

PC 415 (public disturbance)

Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
  (1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
  (2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
  (3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.

PC 415 can be tried as a misdemeanor or as an infraction.  Ideally
you get the misdemeanor knocked down to an infraction, but this is
not always the case. 
Unlawfully fights generally means that there was no consent to the
fight or that the individuals involved in the fight did not agree
to the conduct.  For (2) malicious and willful the person must have
intended to disturb the person and did it for an "evil" purpose. 
For (3) offensive need not be swear words but words intended to provoke
a violent response from the victim.