Criminal Defense

*Our practice is limited to serious felonies only.

Murder/Manslaughter

The law in California relating to Murder and Manslaughter is very complex. As discussed below there are two degrees of Murder, first and second, both carrying life in prison.

The death of a fetus can also be charged as murder in California.

Murder can, in certain circumstances, be reduced to Manslaughter. That is also discussed below.

Because of the potential devastating impact these charges can have on you, your family and friends I am very aggressive in my defense. I work very closely with not only the best investigators but also forensic experts such as Psychiatrists, DNA and Fingerprint experts, Identification experts, Accident Reconstruction experts and more. It is imperative to be aggressive and thorough in the defense of these type of charges because anyone accused of these charges could face life in state prison or even death.

Speaking of the Death Penalty, the district attorney has the discretion to seek the death penalty in those cases where they are charging first degree premeditated murder and alleging one or more special circumstances found in Penal Code Section 190.2; for example:

1. Carried out for financial gain
2. You have been convicted previously of murder in the first or second degree
3. The victim was a peace officer engaged in the course of the performance of his or her duties, you knew he or she was a peace officer engaged in the course of his or her duties or the victim was a former peace officer and was intentionally killed in retaliation for the performance of his or her duties
4. Lying in wait
5. The victim was killed because of his or her race, color, religion, nationality or country of origin
6. The murder was committed while you were engaged in the commission of certain felonies such as Rape, Robbery, Kidnapping, Sodomy, Oral Copulation, Burglary, Arson, Mayhem, Carjacking, etc. (felony murder rule)
7. The infliction of torture
8. Intentionally poisoned
9. Victim intentionally killed while you were an active participant in a criminal street gang and the murder was carried out to further the activities of that criminal street gang.

It is imperative that all means are utilized, many times at county expense to, essentially “level the playing field” against the district attorneys office who has unlimited resources in prosecuting cases such as these.

Below I have set forth the law in California as it relates to these types of serious charges.

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The unlawful killing of a human being, or a fetus, with malice aforethought. (Penal Code Section 187(a))

A fetus is defined as “an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which occurs at seven to eight weeks of development.” (CALCRIM Jury Instruction No. 520)

Certain exceptions apply relating to the death of a fetus. These exceptions are contained in Subsection (b) of section 187:

1. The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code of California. In other words, an abortion performed pursuant to this act;
2. The act was committed by the holder of a physician’s and surgeon’s certificate, as defined in Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus, or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. In other words, procedures that are medically necessary to save the mother’s life;
3. The act was solicited, aided, abetted, or consented to by the mother of the fetus.

However, Subsection (b) does not prohibit or prevent prosecution of any person under any other provision of the law.

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The basic requirement for criminal liability is that there be an overt act or actus reus. There has to be an affirmative act or an omission to act where there is a duty to act.

The overt act must be accompanied by the necessary mental state or mens rea.

However, murder not only requires the overt act and mental state but malice aforethought, which distinguishes murder from manslaughter.

There are two kinds of malice, express and implied.

Express malice is the “deliberate intention unlawfully to take away the life of a fellow creature.” (Penal Code Section 188)

Implied malice exists “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and a malignant heart.” (Penal Code Section 188)

However, in felony murder where one kills someone during the commission or attempted commission of certain specified felonies, malice for the killing is imputed to the felon; it is a strict liability statute, one only need to have the specific intent to commit the specific felony. The reasoning behind this is a public policy concern of deterring felons from accidentally or negligently killing during the commission of a felony.

Eliminate malice and specific intent and you have Manslaughter.

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There are two degrees of Murder: First and Second.

First Degree Murder:

1. Willful, Deliberate and Premeditated.
2. Committed by a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, drive-by shooting with the intent to inflict death.
3. If the killing constitutes Felony Murder as discussed above.

Punishment: Death. LWOP (Life without possibility of parole (release), 25 years to life.

Second Degree Murder:

1. Intentional killing with express malice but without premeditation and without provocation.
2. Unintentional killing with implied malice caused by extremely reckless behavior such as killing someone while operating a motor vehicle intoxicated typically classified as a “Watson” murder relating to the California Supreme Court case of People v. Watson.

Punishment: 15 years to life, unless the killing was of a peace officer engaged in the performance of his or her duties and the defendant knew of same, then it is 25 years to life. Further, if is was a peace officer engaged in the performance of his or her duties, the defendant knew of same, and any of the following apply: (1) the defendant specifically intended to kill the peace officer, (2) the defendant specifically intended to inflict great bodily injury on the peace officer, (3) the defendant personally used a deadly or dangerous weapon (4) the defendant personally used a firearm…then LWOP (Life without possibility of parole (release)) and 20 years to life for someone convicted of an intentional drive-by shooting with the intent to inflict great bodily injury.

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Defenses relating to Murder:

(1) Justifiable: Self Defense or Defense of Others (Penal Code Section 197).

(2) Excusable: Accidental (Penal Code Section 195).

Sex Crimes

California’s sex crimes range from a low of so called “flashing” to violent sexual assaults, encompassing both misdemeanors and felonies.

Sexual Assault or the Procurement Thereof:

California’s sexual assault statutes are all premised upon a lacking of consent to the sexual act itself, whether it be by the denial of consent or duress or menace, not being the legal age of consent, not being physically or psychologically capable of giving consent, or was not aware of the sex act occurring. Rape, Penal Code section 261 can be committed by a non spouse and any of the previously mentioned conditions antecedes the sexual act. Consent is defined by Penal Code 261.6 as being a positive cooperation in act or attitude pursuant to an exercise of free will. Spousal rape under Penal Code section 262 is similarly defined. If the sexual intercourse was procured by fraudulent misrepresentation or the creation of fear, it still can constitute rape. Penal Code section 266c.  Commonly known as “pimping,” if the sexual assault occurs by way of pandering, it is seen as not different than other forms of duress. Penal Code section 266h, I and j.  Taking an underage person away from their parents or legal guardian for the purposes of prostitution is also guilty of a felony sexual assault.

California defines “statutory rape” under Penal Code section 261.5 as being “unlawful sexual intercourse,” not being of the legal age of 18, with more severe penalties imposed upon conviction if the perpetrator is substantially older than the victim. It can be charged as a misdemeanor or a felony (known as a “wobbler”). The law implies that the sexual act was not taken by duress, menace or the lack of capacity to give consent, but was rather non-consensual as a matter of law due to the age of the victim. Civil penalties can also be imposed by the District Attorney.

Rape can be committed by mere penetration. Penal Code section 263. The punishment can be for 3,6 or 8 years, or for 5,7 or 9 years involving violence.  Penal Code section 264.1 However, with California’s three strikes laws thee perpetrator could get that sentenced doubled if it was a second offense that was a strike, or if a third strikeable offense could yield a sentence of 25 years to life.  A strikeable offense in California means that the first or second felony was either serious or violent, but the third need not be either. It could be a petty theft with a prior that is made a felony by the fact of the second theft offense.

A sexual assault on a child is “aggravated” for rape, sodomy or penetration purposes if the victim is 14 years of age or younger and the perpetrator is more than 7 years older Penal Code section 269. The penalties can be up to 15 years per incident, and consecutive sentences may be imposed if it occurs on the same victim.

Bigamy or plural marriage, defined as marring another spouse while remaining married to another, is a misdemeanor punishable by up to one year in jail and a $10,000 fine. Penal Code section 281-283.  Incest is defined as marriage between those with “degrees of consanguinity,” or who  are so related, over the age of 14 and  fornicate or commit adultery with each other .  Penal  Code section 285.  It is punishable by a state prison term of undefined terms.

Sodomy is defined as sexual contact between a penis and an anus. Penal Code 286.   Here the punishment varies by the age of the perpetrator and the victim.  A “participant” under 18 faces a maximum penalty of up to a year in jail. If one is 21 and the other 16 or less, it is a felony. If one participant is more than 10 years older than the  participant who is 14 years  of age or younger faces a term of either 3,6 or 8 years.   Any sodomy committed with the use of force or threats of future action is also guilty of a felony and faces a term of either 3, 6 or 8 years.  Sodomy with animals is a misdemeanor. Penal Coe section 286.5. Oral copulation is the touching of the mouth to any sex organ or anus of another person, punishable as a misdemeanor and up to one year in jail.  Penal Code section 288a. If the perpetrator is 21 and the victim 16, it is a felony.  If the victim is 14 years  of age or younger, or it involves duress or force, or by an artifice, or is a pubic officer threatening pubic arrest, the punishment is 3,6, or 8 years.   

Sexual penetration or “digital penetration” against the persons will by means of force, duress, violence ,  menace, or fear of immediate danger, or of future threat, or that person is incapable of giving consent due to capacity or is punishable by a term of 3,6 or 8 years. Penal Code section 289.

The broad category of “lewd and lascivious acts” includes any form of physical touching of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child who is 14 years of age or younger is guilty of a felony. Penal Code section.  The penalty various by the ages of the perpetrator and the victim.  If done with by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or done by a caretaker, it is a felony punishable by 3,6, or 8 years. If the perpetrator is at least 10 years older than the victim and the victim is 14-15 years old, is punishable by 1,2 or 3 years.  The court may have a fine imposed on the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000).  A mental examination may be required before being released for this crime. Penal Code section 288.1.

The attempted or actual seduction of a minor such as seen on the “To Catch a Predator” with the intent to with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor, may face the individual penalty for an attempt of those crimes. A second offense may add on an additional 5 years.

Any person who either resides in the same home or has recurring access to a minor child aged 14 or younger and sexually abuses a child of any type is be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. Penal Code section 288.5.  Any form of sexual intercourse with a minor ten years or more younger than a perpetrator of at least 18 years of age faces a term of 25 years to life.  Penal code section 288.7

The crime of “flashing” or exposing one’s genitalia, pubic or rectal area  to a child is punishable as a misdemeanor and a jail sentence of up to one year. A second offense can yield a mandatory prison term. Penal Code section 288.3  If committed in a pre-arranged meeting place by imprisonment in the state prison for two, three, or four years.

White Collar Crimes

What is White Collar Crime? Well, it encompasses a variety of crimes, for example;

• Credit card or check fraud
• Securities fraud
• Investment fraud
• Internet fraud
• Tax fraud
• Mail fraud
• Bank fraud
• Identity theft
• Bribery
• Embezzlement
• Forgery

People who are involved in these types of crimes are often average businesspeople. The laws in this area change frequently and the punishments can be severe. Because of that you need an experienced White Collar Crimes attorney who can protect your rights even if you are only being investigated by the authorities. In fact, having an experienced attorney present at any questioning is vital! Your life, in many ways, may be at stake. Certainly your business reputation will be called into question and because of that you need someone who is knowledgeable and aggressive in protecting your rights.