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California Penal Code Section 243.4 defines sexual battery as the non-consensual touching of the intimate part of another for sexual arousal, sexual gratification or sexual abuse. It can be charged as either a misdemeanor or a felony, depending upon the circumstances.

Some people may find this hard to believe but, even a slight pat or slap on the butt of another could result in a charge of sexual battery. It would most likely be filed as a misdemeanor but any type of charge for sexual battery looks bad.

There was a time when a man slapping a woman or girl on her behind may have been considered, in some weird way, an act of flirtation. But now, if that person was a stranger or even if they weren’t, if the person being slapped on the bottom is offended by the act, she/he would be within their right to file a police report.

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What is embezzlement and how is it different from a theft charge? Put in very simple terms, embezzlement is basically stealing from your employer. The distinction between embezzlement and theft is the term “entrusting”. It is the way in which the theft was committed. The Penal Code defines embezzlement as the unlawful taking of something from another that has been entrusted to you.

As an example, you work for a company in which part of your responsibility is to take in payments, make bank deposits and generally keep track of money coming in and going out. When your employer hired you they did so with the trust and understanding that you would perform these duties responsibly and truthfully. Because your employer trusted you, you were given access to the bank account, check books, and may even be authorized to sign on the account or issue checks. This is “entrusting” you to do the right thing. They obviously would not have hired you if they felt otherwise.

Penal Code 484 is defined as: “Every person who shall fraudulently appropriate property that has been entrusted to him/her is guilty of theft”. Because of the position of trust, it is considered more serious than a theft. The consequences if convicted will depend upon specific facts surrounding the theft. The value of the theft will determine whether the case is filed as a felony or a misdemeanor. This is called a “wobbler” and when deciding how the case will be filed, the district attorney will take into consideration the value, the circumstances of the theft and your criminal history, if any. If the way in which the theft occurred was highly sophisticated, showing lots of planning and deceit, the district attorney will be more likely to file the case as a felony. However, if you hire an attorney prior to the case being filed, during the district attorney’s review stage, your attorney may be able to convince the district attorney to file the case as a misdemeanor if it looks like they may be on the fence about it. A good defense attorney will present you in the most positive light as possible, giving the district attorney details about you and your life that may result in a misdemeanor filing rather than a felony. This is why early intervention is so crucial in these types of cases.

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Penal Code Section 851.8 provides that a person who has been arrested or detained and is determined to be factually innocent may petition the law enforcement agency or court having jurisdiction over the matter to provide for the sealing and destruction of the record of that arrest. Petitions concerning arrests may be filed for up to two years following the arrest filing date.

So, what exactly does this mean? Simply put, it means that if you were arrested and, according to the law should not have been, you may petition the court to destroy all records of the arrest.

A good example of a wrongful arrest would be if you were arrested for having a Vicodin pill in your possession and you repeatedly explain to the officer that you have a prescription for Vicodin but the officer arrest you anyway, rather than taking the time to find out whether or not you are telling the truth. The case is then submitted to the District Attorney. Once the District Attorney is made aware that you do in fact have a prescription for Vicodin, the case is rejected but the arrest is there to stay.

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When I get a call from someone who has been arrested for domestic violence, they often tell me that they were arrested for “Felony” domestic violence. What they don’t understand is that arresting agencies typically will call it a felony at the time of arrest, but it is up to the District Attorney whether or not they will file it as a felony or a misdemeanor.

As mentioned above, domestic violence can be filed as either a misdemeanor or a felony. When the district attorney is deciding how to file the case, they will look at the circumstances surrounding the incident, the relationship between the accused and the “victim”, the criminal history, if any, of the accused and the severity of the injuries, if there were any.

One of the more common arrests for domestic violence is for Penal Code 243(e). It involves battery upon a spouse, co-habitant, etc. This is a misdemeanor domestic violence charge. Another more common charge for domestic violence is Penal Code Section 273.5. This is a “wobbler” and can be filed either way. Arresting agencies typically will arrest a suspect for felony 273.5 but once it reaches the district attorney, will be reduced to a misdemeanor.

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Border Patrol officers in San Clemente intercepted $6.7 million of cocaine at a freeway checkpoint last week when a man claiming to be a U.S. citizen was stopped. The 54-year-old man was nicely dressed in a suit and tie and driving a relatively new automobile but there was something about him, or the car, that caused the border agents to be suspicious.

If anyone has ever gone through one of these border checkpoints, you know that most of the time you are just waived through. Occasionally you are stopped briefly and asked where you are coming from, where you are going, and if you have any produce in your car. Apparently this is all they need to decide whether or not they want to investigate further. The Border Patrol agents at checkpoints can stop and question anyone even if there is no reason to believe that there are any illegal aliens inside. The United States Supreme Court determined this. It was further ruled that the Border Patrol agents “have wide discretion” to request that the car, and the occupants, pull over to another inspection area for further questioning.

In this particular situation, when the man told the officers that he was a citizen, apparently they were suspicious and ran a record check. This revealed that he was actually a Mexican national and arrested him. This was all they needed to be able to then search his car. The search revealed several large cardboard boxes in both the backseat and trunk of the car. The large cardboard boxes in the back seat may have been what brought attention to the man and caused suspicion. It was discovered that 53 packages of cocaine were inside the boxes, which was estimated to weigh approximately 670 pounds. On the street, that would be worth around $6.7 million.

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Penal Code Section 496 makes it a crime to knowingly buy, sell, receive conceal or withhold property that has been stolen. The key word here is “knowingly”. In order for the prosecution to prove that a crime has been committed, they must be able to prove that you knew that the property was stolen when you receive or took possession of it.

To explain a little further, in California, the state must essentially show that the person receiving the property knew, or reasonably SHOULD have known, that the property was stolen. So, if someone buys something that has a value of $5,000.00 but was able to purchase it for $250.00, this would be a “red flag” and may provide evidence for the prosecution that the person knew or “should have known.”

So what are some of the ways the prosecution can prove someone knew that the property was stolen. Obviously, confessions or statements at the time of the arrest or when being questioned would help the prosecutions case. But, where there is no confession or incriminating statements, the prosecution relies on the circumstances surrounding the arrest. Suspicious activities may include:

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Being arrested and facing criminal charges is a traumatic experience but choosing the right lawyer can minimize the stress and anxiety one suffers while moving through the process toward a resolution. When trying to decide which lawyer is right for you, there are a few things to consider when making a decision.

1. Choose an attorney who is familiar with the local courts. Every courthouse in every county has it’s own procedures. I have been working out of the same courthouses for more than 20 years and have developed professional and trusting relationships with court staff, which is very valuable for an attorney when it comes to strategy. My more than 20 years of criminal law defense work in Orange County, has allowed me to create relationships with judges, district attorneys and court staff, as well as the knowledge of how each particular courtroom works. Knowing who to talk to has afforded me opportunities to get the most positive outcome for my clients.

2. Choose an attorney who will maintain close personal contact with you. Facing criminal charges can throw most peoples lives into a spin and the anxiety can be at times overwhelming. Being able to talk to your attorney when you are feeling most vulnerable is invaluable and can make the whole process a little less stressful.

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California is not doing enough to keep firearms out of the hands of the mentally ill, according to a state audit released on October 24. The breakdown is a result of the state’s failure to report a person’s mental health status to the Department of Justice (DOJ).

Why is this happening, especially in light of the ever-increasing acts of gun violence involving the mental ill, begs closer examination. The first step in looking at this issue more closely begins with the Superior courts around the state. When an individual is convicted of certain crimes, he or she loses the right to carry or possess or own a firearm. Crimes like domestic violence, restraining order violations and enumerated assault and gun possession and use offenses will cause revocation of the right.

Theoretically, the courts should automatically notify the state Department of Justice. But of the 34 courts surveyed, most weren’t even aware they had the reporting obligation, nor did they send notice of convictions to the Mental Health unit at the DOJ. Over a three-year period, 2,300 prohibited individuals did not get reported. Some courts did submit reports but they were incomplete in different ways.

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When we hear that someone has been arrested for burglary, we imagine someone breaking into a home, late at night while the occupants sleep, and stealing something. While the scenario described is a burglary under California law, you can be charged with burglary even if you don’t take anything.

Simply put, burglary is defined as someone entering another person’s property with the intent to steal something or, commit any other kind of felony once inside. Even if you don’t act on the intent, the fact that the property was entered initially with the intent to commit a theft or felony is enough to be charged with burglary.

There are two degrees of burglary and they are both considered felonies. Although, second degree burglary is a “wobbler” meaning is can be filed as a misdemeanor. Felony burglary is a serious crime with serious consequences if convicted. The punishment for a conviction of burglary may include fines, prison and payment of restitution to the victim.

Degrees of Burglary Described:

Second-degree burglary, as mentioned above, may be filed as either a misdemeanor or felony, and is committed when a person enters a commercial building with the intent to commit a felony or theft once inside.

First-degree burglary is a felony, and as you may have guessed, is the more serious of the two. This is when a person enters a residence with the intent to commit a felony or theft once inside.

For the prosecution to prove a burglary charge, it must be proven that the defendant entered the property without permission and had specific intent to commit a crime once inside. Absent the intent, the prosecution may be forced to change the charge to trespassing or drop the charges completely.

One defense to a burglary charge might be that the defendant had permission to enter the property. If the defendant had permission to be on the premises, it would be hard to prove burglary. If something had been taken, it could have been an after-thought. In other words, once inside, the defendant notices something he/she wants and decides at that moment to take. There was no intent to commit the crime prior to entering the premises. Remember, a necessary element to prove burglary is intent.

Intoxication may be a possible defense. There was no intent to commit a crime once inside but, in an intoxicated state, enters a dwelling.

Every case is different and the specific facts will dictate the type of defense your attorney will pursue.

The penalties, if convicted, will depend upon how the prosecution files the case. Whether it is filed as 1st degree burglary or 2nd degree burglary. A conviction for 1st degree burglary can carry a sentence of state prison for two, four or six years. A conviction for 2nd degree burglary could be up to one year in jail or three years in prison, depending upon how it’s filed. This in addition to fines and possible restitution to the victim.

There are situations where a court may grant probation rather than jail time. However, with a conviction for 1st degree burglary, the Court cannot grant probation unless it is in the interest of justice and there are unusual circumstances.

Hiring an experienced criminal defense attorney in the County where your case is pending is highly recommended as they will be familiar with the District Attorneys and Judges and will be in a better position to get the best possible outcome.

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