Saturday, February 2, 2013

What's the Difference Between a Burglary and a Robbery?

Property Crimes in California - Theft, Burglary, and Robbery

     People often confuse the difference between the lay term for "burglary," "theft," and "robbery" from the legal definitions.  I hope will lay out the basic differences between the three terms, then more specifically delve into each crime as defined under California law.  The confusion lies in that California defines a "Theft" as taking property from someone with the intent not to return it.  Under the law, a "burglary" is entering a building with intent to commit a felony inside.  No completed stealing is required for a burglary.  A "Robbery" is taking property from someone using force or fear.  When someone's house is broken into when she's gone, a burglary may have been committed, but there is no robbery since property was not taken from her body.

1.  THEFT

     "Theft" is taking property, belonging to someone else, with the intent to permanently deprive at the time of the taking.  The distance required for the taking is minimal, as little as a couple feet to a couple steps.  A person cannot steal her own property, but one's own property abandoned or given to someone else becomes "someone else's" property.

     PETTY THEFT - PENAL CODE SECTION 490.5/484(A)

     When a theft occurs as defined above and the value of the property taken is less than $950, then the crime is a Petty Theft  A petty theft can be an infraction (only punishable by a fine) or a misdemeanor punishable with either a fine, informal (summary) probation, jail up to 6 months, or a combination of all three. The punishment will depend on the severity of facts (dollar amount of item(s), number of item(s), and other surrounding facts like children involved), the length of the Defendant's prior criminal record, and personal circumstances of Defendant (age, mental health or life circumstances, etc.)

     GRAND THEFT - PENAL CODE SECTION 487(A)

     When a theft occurs and the value of the property taken is more than $950, then the crime is a Grand Theft.  Grand Theft can be a misdemeanor or felony under California law.  The maximum punishment is up to one year in county jail with probation (as a misdemeanor or felony) or up to 3 years in Prison as a felony (known as a "16-2-3 Felony," which is slang for a felony punishable in prison for 16 months, 2 years, or 3 years).  This charge is eligible for "County Prison" under the prison Realignment Law Penal Code Section 1170(h); see previous post about "County Prison").  A prisoner serves 50% of any sentence in jail or prison if on good behavior under Penal Code 4019.   Grand theft is considered a "Wobbler" (slang term meaning it "wobbles between a misdemeanor or felony).  Whether charged as misdemeanor or felony depends on the same facts listed above; i.e. severity of the facts, length of Defendant's prior criminal record, and personal circumstances of the Defendant.

2.  BURGLARY

     "Burglary" is entering a building or LOCKED car, with the intent to commit a felony inside the building.  Any part of a person's body (whole body or arm) or object the person is holding must cross the thresh-hold of the building's outer boundary (including a window screen).  The building must be a structure enclosed by four walls.  A person must have the intent to commit a felony inside the building at the time of the entering.  If a person entered the building with a lawful intent, formed the intent to commit a crime after entering the building, then there is no burglary.  Intent to commit any type of felony is eligible under the charge. The most common intent is to commit theft, but intent to vandalize, commit violence (domestic), commit sex act are sufficient.  A person is DOES NOT HAVE TO BE SUCCESSFUL in committing the felony inside the building; entering the building with the intent is enough.  There is a very big difference in punishment between burglary of a business (Commercial Burglary) and burglary of a person's home (Residential Burglary).

     COMMERCIAL BURGLARY (2ND DEGREE) - PENAL CODE SECTION 459 (2ND)

     Entering a business or locked car with the intent to commit a felony inside the building is a "2nd Degree Commercial Burglary" ("Commercial Burg" is a slang term) under California.  The charge can be filed as either a misdemeanor or felony ("Wobbler").  Commercial burglaries are punishable up to 1 year in county jail with probation or up to 3 years in prison. This charge is also a "16-2-3 Felony" and eligible for "County Prison" under realignment.  A prisoner serves 50% of any sentence if on good behavior.

     RESIDENTIAL BURGLARY (1ST DEGREE) - PENAL CODE SECTION 459 (1ST)

     California law treats burglary of someone's home much more seriously than a business, therefore the punishments and effect on a person's criminal record are much more severe.  To be charged with a "Res Burg," the building must be a building with 4 walls, a roof, and someone LIVES there ("Inhabited").  A person does not have to be home at the time for a Res Burg to occur.  A house can also be a boat, floating home, trailer coach, or part of a building, as long as someone uses it as the place to live and keep their belongings.  Entering structures attached to the house can become a Res Burg like attached garages, attached home offices, occupied hotel room, and occasionally-occupied guest house.

     A Residential Burglary is a straight Felony (cannot be charged as a misdemeanor) and is a "Strike" if convicted of the charge (See "Strikes" in previous post). The punishment is up to 1 year in county jail with probation, or up to 6 years in STATE Prison (punishment range is 2-4-6 yrs in State Prison).  This charge is NOT eligible for County Prison since it is a Strike.  A prisoner either will do 50% or 85% of a sentence, depending on whether someone was home during the Res Burg ("Person Present").

     Residential Burglary NO PERSON PRESENT

     If a person commits a Res Burg, but no one is home at the time, then this is considered a "Serious" Strike and eligible for 50% off any jail or prison sentence if on good behavior.

     Residential Burglary PERSON PRESENT

     If a person commits a Res Burg and someone is home at the time, then this is considered a "Serious" and "Violent" Strike.  Therefore a person must serve 85% of a State prison sentence, but if a person is sentenced to county jail and probation, she does 50% of the sentence. But if she violates her probation and is sentenced to state prison, her credits for good behavior in county jail are recalculated to reflect only 15% off for good behavior, not the 50% off she originally received while on probation; i.e. if she goes to state prison for a probation violation, she has to do 85% in state prison and county jail.

3.  ROBBERY

     "Robbery" is taking property, belonging to someone else, in that person's presence, with the intent to permanently deprive, by using force or fear (threat of force).  The force or fear must be used at the time of the taking. Force or fear employed after the taking does not count, except in some circumstances (See "Estes Robbery" below) In short, a robbery is a theft by force or fear.  Force can be pushing, hitting, slapping, grabbing, or any kind of non-consentual, negative contact.  No force is needed if there is fear used during the taking. Fear can be verbal like threats of harm, conditional threats (if x, then y), and even non-verbal acts (making a throat-slashing gesture with a hand, lifting up a shirt as if possessing a gun).  In short, the equation below summarizes the robbery definition.

                                    Robbery = Theft + Person Present + Force/Fear

     1st DEGREE ROBBERY - PENAL CODE SECTION 211

     The robbery of a person who is inside her house ("Res Robbery"),  just finished using the ATM, or driving/riding in a taxi are 1st Degree Robberies.  The punishment is as a felony for a range of up to 3-5-6 years in State Prison (3-6-9 years if working in concert with another during commission of a Residential Robbery).  A conviction is considered a "Serious" and "Violent" Strike, therefore a prisoner has to serve 85% of any State Prison sentence if on good behavior. This charge is not eligible for County Prison since it is a Strike.

     2nd DEGREE ROBBERY - PENAL CODE SECTION 211

     All other robberies other than the ones listed above are 2nd Degree.  The punishment is as a felony for up to 1 year in county jail with probation, or for 2-3-5 years in State Prison.  A conviction here is also considered a "Serious" and "Violent" Strike, therefore a prisoner has to serve 85% of any State Prison sentence if on good behavior.  This charge is not eligible for County Prison since it is a Strike.

     "ESTES ROBBERY" SITUATION - Use of Force in Escaping After Theft

     Normally, a robbery must be a taking of property in the person's presence.  Stealing property from a store is not a robbery since the taking is not in the owner's presence, but a special situation arises when force is used to try to escape after a theft occurs in California.  Under the holding from a criminal case called People v. Estes, it is a robbery under California law when a person uses force or fear to escape after committing a theft.  Often misdemeanor law violations like petty theft or burglary escalate into felony robbery charges when the Defendant is accused of pushing, punching, fighting with store employees in trying to escape the situation or escape with their property.  DO NOT LET THIS SITUATION OCCUR TO YOU OR YOUR FRIEND OR YOUR FAMILY.  In general, fighting or using force to escape the situation creates the possibility that charges can escalate if caught.


Wednesday, January 23, 2013

Driving on a Suspended License in California

     Driving on a suspended driver's license ("CDL") is a misdemeanor crime in California, but it can also be charged as an infraction.  Many people think it is the equivalent to a speeding ticket or running a red light, but the punishment and consequences can and often will be much more severe than traffic ticket.

How Did My Driver's License Get Suspended?

     The DMV can suspend a person's driver's license for many different reasons.  If you suspect your driver's license has been suspended, visit your local DMV branch and inquire into the status of your CDL.  Here's a list of possible reasons for a CDL being suspended:

   - Arrested on SUSPECTED DUI and 30 days after arrest, license suspended (did not request DMV Suspension Hearing within 10 days of arrest to fight suspension or lost Suspension Hearing)
   - Convicted of Driving Under the Influence and have not enrolled in Alcohol Education Class (AB541 for first time conviction, SB38 for second time conviction)
   - Unpaid/Open Traffic tickets
   - Too many traffic convictions within specified period
   - Unpaid child support
   - Unpaid judgment from lost lawsuit

Vehicle Code Section 14601.1(a) - Driving on a Suspended CDL

     Under this section, it is a misdemeanor for a person to drive a car knowing her driver's license has been suspended by the DMV.  To prove the case, the District Attorney's Office must prove the following elements:

     1. The defendant drove a motor vehicle while her driver's license was suspended/ [or] revoked
AND
     2. When the defendant drove, she KNEW that her driver's license was suspended/ [or] revoked.
To show KNOWLEDGE of a suspended license, a jury can consider different methods:
     1. A Judge or law enforcement officer personally informs (gives notice) to the defendant that her license is suspended
OR
     2. Department of Motor Vehicles mails a notice to the defendant through the following elements:
         a. The California Department of Motor Vehicles mailed a notice to the defendant telling her that her driver's license had been suspended/ [or] revoked;
         b. The notice was sent to the most recent address reported to the department [or any more recent address reported by the person, a court, or a law enforcement agency];
      AND
         c. The notice was not returned to the department as undeliverable or unclaimed;
Punishment for Driving on a Suspended License
     The punishments if caught knowingly driving on a suspended driver's license range from an infraction and fine in the hundreds of dollars to summary (informal) probation, fines over $2,000, and/or county jail up to 6 months.
     For a first time offense, some DA's offices will agree to reduce the charge to an infraction, thus avoiding probation and jail time.  For multiple offenders, the punishments can/will be more severe and will often include probation, jail, and very large fines.
Repeat Offenders - Punishment is Greater
     Vehicle Code Section 14601.2(a) - Driving on License Suspended Due to Alcohol
     A person's driver's license can be suspended upon a conviction for Driving Under the Influence (DUI) or after being arrested on SUSPECTED DUI.  Once convicted of DUI, the DMV will suspend a person's license to drive until  a person is arrested for SUSPECTED DUI, the police officer involved with fill out a DMV form requesting to suspend the defendant's driver's license.  The defendant has 10 days to request a hearing.

     If a person is caught driving a car, knowing her CDL is suspended for a prior DUI conviction, the punishment is a minimum of 10 days county jail (maximum 6 months county jail), in addition to informal (summary) probation.  If the person is driving on a license suspended for a prior DUI conviction and has a prior conviction for driving on a suspended license LESS THAN 5 YEARS BEFORE, the minimum punishment is 30 days county jail.

Wednesday, October 31, 2012

California Drunk Driving Laws

     In California, drunk driving (Driving Under the Influence or "DUI")  laws address impaired driving whether it is presumed by law or a person is in fact too impaired to drive safely.  DUI laws also address whether the impairment is caused by alcohol or drugs (legal or illegal).  I'll address the different ways

1 Act of Drunk Driving Can Be Charged in 2 Ways

  1. Vehicle Code Section 23152(a) - Driving Under the Influence of Alcohol and/or Drugs ("a count")

     In California, it is illegal for a person to drive a car will enough alcohol or drugs in his/her body that he/she cannot drive as a safely as a sober person. Under this charge, a person must be driving at the time he/she is driving dangerously due to alcohol and/or drug.  A person can be prosecuted for DUI and be UNDER THE LEGAL LIMIT OF .08% FOR ALCOHOL as long as the person is DRIVING MORE DANGEROUSLY THAN A SOBER PERSON.  If a person has a drug in his/her system, the DRUG DOES NOT HAVE TO BE AN ILLEGAL SUBSTANCE as long as the person is DRIVING MORE DANGEROUSLY THAN A SOBER PERSON.

     For example, if a person took Ambien, a legally prescribed sleeping medication, and drives poorly (such as weaving, nearly colliding into other cars), the he/she could be charged with DUI under the "a count."  Even though the drug/medication is legally prescribed, it is illegal to drive while under the influence of the substance when a person drives more dangerously than a sober person.  The same holds true for illegal drugs.

     In order to be convicted, there must be a showing of "under the influence,"  District Attorneys will try to suggest under the influence through poor driving, poor performance on Field Sobriety Tests ("FST's"), trouble standing, slurring speech, red & watery eyes, or through testimony of a Criminalist suggesting impairment based on the amount of drugs in the body.  Can a Criminalist really know the level of impairment based on a lab result by itself?  If the lab results show a very high amount of alcohol/drugs, perhaps.  If low amounts, I think not, that to testify as to impairment is speculative and best, pure guesswork at worst.

  2. Vehicle Code Section 23152(b) - Driving With Blood Alcohol of .08% or More ("b count")

     The second way to charge drunk driving involves ALCOHOL ONLY.  In the "b count," the District Attorney is NOT REQUIRED TO SHOW A PERSON IS IMPAIRED while driving, but merely AT THE TIME OF DRIVING, A PERSON'S BLOOD ALCOHOL LEVEL WAS .08% OR MORE.  No poor driving is required.  No bad FST's are required.  The law also provides that if a BLOOD TEST IS PERFORMED WITHIN A COUPLE HOURS OF DRIVING, THAT IS THE BLOOD ALCOHOL LEVEL AT THE TIME OF DRIVING.  That is a REBUTTABLE PRESUMPTION, meaning the Defense has the burden of proving to a jury that the presumption of blood alcohol level at the time of driving is wrong.  Fair?  As a public defender, I don't think so.

     For the "b count," the prosecution is not required to show a person was driving impaired or driving more dangerously than a sober person.  The prosecution is required to show that 1) a person was driving and 2) at the time of driving, the person's blood alcohol was .08% or higher.


Monday, September 10, 2012

How to Calculate "How Much Time I Have Left"

Now you know 50%, 80%, and 85% are important numbers in California sentencing.  How much time an inmate will serve under these numbers varies depending on whether the sentence is served in county jail or state prison.  If a sentence is served in county jail, how much time off for good behavior is given depends on the amount of overcrowding.  Those who have passed through the Los Angeles County jail system are probably very familiar with 10%.  That is how much of a jail sentence one will probably serve in Los Angeles County - 10%.

If I serve a 16 month state prison sentence and I have been in jail for 2 months now, lets answer "How Much Time I Have Left."

Here's how to calculate "How Much Time I Have Left."
1. Start with the number of actual credits already served in custody (beginning from the day arrested on the charge in the same county or from the date when transferred to the County where the charge occurred if in custody in a different county).  In this case - 2 months.
2. Is the sentence a 50% or 80% sentence?  If yes, then the amount of actual credits equals the amount of good conduct credits.  In this case - 2 months.
3. Add the number of actual time credits to the number of good conduct credits.  In this case - 2 months actual + 2 months good conduct credits = 4 months total credits.
4. Subtract the number of TOTAL credits from the prison sentence.  In this case - 16 months minus 4 months total credits = 12 months remaining.
5. Reduce the REMAINING time to be served on the sentence based on whether it's a 50% or 80% sentence.  In this case - If 50% is served, then 50% or 12 months remaining = 6 months LEFT.  If 80% is served, then 12 months remaining X 80% = 9.6 months LEFT.

If I serve a 60 day county jail sentence and I have been in jail for 8 days now, "How Much Time I Have Left?" Answer: 22 days left.
Here's how I obtained that answer following the steps above.
1. 8 days actual credits (Number of actual credits already served)
2. 8 days good conduct credits (County Jail sentences are now reduced by 50%)
3. 8 days actual + 8 days good conduct = 16 days total credits (Add actual credits + good conduct credits)
4. 60 day sentence - 16 total credits = 44 days remaining
5. 44 days x 50% = 22 days left

"How much time will I do?"

"How much time will I ACTUALLY do?" is a question I hear multiple times a day because every client I have asks me that.  I don't blame them because their lives have been uprooted and any plans they had are placed on indefinite hold.  Lawyers always joke how they are bad at math, so that's why they went to law school.  If find in my practice, math is critically important when it comes down to calculating sentences and how much actual time one must serve after good behavior. Since it's so important to my clients, it's critically important to me.

Therefore, calculating how much time a client must serve on any sentence is critical, as well as dispelling many incorrect rumors that constantly float around the jail system about early release.  Because of jail and prison overcrowding, inmates can and have been serving less and less of their sentences, but there are so many rumors floating around the jails about changes in the law regarding sentencing.  In my experience, all the rumors about changes in the law are wrong.  Many people are getting out earlier and earlier than expecting, but it's due to lack of space in the jails and prisons, not because of any change in the law.

These are the 3 numbers that sum up almost all sentences (misdemeanor and felony) in California.
50%.  80%.  85%

50% AKA "Half Time"
On the current state of the law, any person serving a county jail or prison (state or county) commitment serves 50% of any sentence based on good behavior.  For a 6 month jail sentence, a person would serve 3 months actual (3 months off for "good behavior").  The detention facility (jail or prison) could reduce the good conduct credits if an inmate is disciplined.  For a state prison commitment, credits earned on the case in county jail are governed by 50%.

80% AKA "Admitting a Prior Strike"
This applies only to state prison commitments when someone has been convicted of a new felony and a prior strike has been plead or proven (jury found prior strike true after a jury trial or defendant admitted a prior strike as part of a plea agreement).  Admitting a prior strike doubles the state prison sentence for a conviction of a new felony and then a defendant will serve 80% of the sentence (20% off for good behavior).  Credits earned on the case in county jail earn 50% good conduct credits, but an inmate serves 80% of the remaining prison sentence (i.e. remaining prison sentence is reduced by 20%).

85% AKA "85% Strikes"
Regardless of whether a person has a prior strike or not, if a defendant is convicted of certain "strike" offenses (both serious and violent), California law says 85% of the sentence must be served (15% off for good behavior).  The most common of these offenses are robbery (Penal Code Section 211), carjacking (PC 215), residential burglary with person present (PC 459 1st), rape (PC 261(a)), attempted murder (PC 664/187), and most sex offenses committed upon children.  As opposed to 50% and 80% time, any county jail credits earned on this case before going to state prison are not eligible for "half time" good conduct credits.  An inmate must serve 85% of the  entire sentence, whether served in county jail pending trial or plea and state prison after conviction. 

Friday, August 31, 2012

Let's play: What's my exposure?

The general public thinks California is laid back with the sun, surf, and the sand.  That view cannot be farther from the truth when it comes to punishment.  There is a reason why the prisons and jails are overcrowded in this state.

This is the first post in a series of posts where we will play a game.  The game is to find out what kind of punishment a person could face in a common factual scenario.  The results can/will blow your mind.

Situation: A young male goes into a liquor store, points a gun at the cashier, asks for money, grabs $30 from the cashier's hand and runs out of the store.  The cashier runs after the suspect, a police officer driving by notices this, and detains both the cashier and the young male.  The young male has $30 cash and a gun on him; the cashier identifies the young male as the one pointing the gun while demanding money.  The young male is 18 years old. What my exposure?

County jail? Prison? 1 year?  3 years?  What if I told you the maximum exposure for these facts is 15 years in state prison?  To be served at 85%.  That is the maximum in this case, but the boy would be facing much less punishment if he has no criminal record.  If he has a criminal record, the punishment would often be much less by plea agreement, but if convicted after trial, the judge can sentence in many different ways: probation with jail, 2 yrs, 3 yrs, 5 yrs, 12 yrs, 13 yrs, 15 yrs.

An 18 year old is considered an adult in California, so this case would be handled in adult court.  For taking money by force or threat of force: Robbery per PC 211 as a "strike."  Exposure is up to 1 year in county jail with supervised probation or state prison for 2, 3 or 5 years ("2-3-5").  Use of the gun during commission of "violent" felony (strike) per PC 12022.53(a) is 10 years in state prison "consecutive" (in addition to) any prison sentence on the robbery.  Thus, the max exposure is 5 yrs on the robbery + 10 years for the use of the firearm = 15 years in prison. Defendants usually do not receive max punishment, unless there is an extensive prior criminal record.

During plea negotiations, the defendant's prior record, strength on the DA's case, and the particular DDA on the case will influence offers to plead guilty.  Some DA's will agree to probation with a lot of jail for a first time offense.  Some DA's will want low term prison because a gun was involved, even if first time offense. Some DA's may want more than 2-3 years in prison, but less than 12 years by adding a gun enhancement with less punishment.

As you can see, the exposure is one thing, and final sentencing is another.  Plea negotiations vary widely depending on which county you are dealing with, which DDA is handling the case, which particular judge the case is appearing in, and the prior record of the defendant.

How long does the DA have to file charges?

As any good lawyer will say, "It depends."

It depends on the type of charge and how charges are filed.

Misdemeanors

For misdemeanors, the District Attorney's office usually has up to one year from date of incident to file charges.  If charges are filed after one year from date of incident, your attorney must address that issue (give notice) at the arraignment (defendant's first appearance in court).  The date of incident should be stated on the Complaint or the date of offense listed at the top of the citation.  The date of filing of the Complaint should be stamped by the court clerk somewhere on the Complaint.

Felonies

For felonies, the amount of time the DA's office has to file charges depends on the type of charge and any special rules regarding discovery of the crime.  For most general felonies (possession/sale of drugs, auto theft, felony assaults), the DA's office has up to 3 years from date of incident to file charges.  For murder charges, there is no deadline to file charges since it is punishable up to life in prison.  For other felonies, the time starts running not from the date of incident, but from the date when the alleged crime was discovered or reported (molestation, certain fraud/embezzlement crimes).  The rationale in the law for this variation is that for some crimes, there is a delay in reporting of many years (molestation) or financial crimes are discovered after the alleged act was committed.

In short, if a person is arrested, it may take quite a while to find out whether or not a criminal case is filed.

What Happens After Being Arrested

For a non-traffic case, the police officer (or Detective handling follow-up investigations) will write a police report summarizing the incident. That report will be forwarded to the District Attorney's Office  for review to determine if the office will file criminal charges.  If the DA's Office believes there is sufficient evidence to prove guilt beyond a reasonable doubt at a jury trial, the office will file criminal charges through a CRIMINAL COMPLAINT.

If the DA's Office believes that based on the police report, no crime was committed or there is insufficient evidence to prove guilt, then the DA's Office will TURN DOWN the case.

If the DA's Office believes that more information is required in order to determine if charges will be filed, the DA's Office can request supplemental investigation.  The police will do more investigation and upon supplemental investigation reports submitted to the DA's office, the DA will decide to either file charges or turn down the case.