San Diego Criminal Lawyer Blog

Possession or Displaying a Fake Identification Card or Driver's License

Possession or displaying a fake, altered, or counterfeit government-issued identification card (ID) or driver's license (DL) is prohibited under California Penal Code §470b, and may be punished as either a felony or a misdemeanor, depending on the circumstances of your case and/or criminal record.

Unlike CA PC §470a, which prohibits falsifying, altering, or counterfeiting a DL or ID, the crime of possessing or displaying does not require the Prosecutor to prove that the defendant actually altered or faked an ID or DL. Conviction under CA PC §470b Possessing or Displaying a Fake ID Or DL may have some serious consequences - Speaking with a San Diego criminal lawyer experienced in Fake ID or Driver's License matters is critical to securing the best possible outcome in your case.

Common Examples of Possessing or Displaying a Fake ID or DL:
• Being younger than 18 years old and using a "fake" ID or DL to purchase cigarettes or porno;
• Being younger than 21 years old and using a "fake" ID or DL to purchase alcohol, or to enter clubs or bars where alcohol is served;
• Possessing a fake ID or DL to hide the fact that you have a warrant out for your arrest, or to hide your status as an undocumented or illegal alien in the US.

Elements of Possessing or Displaying a Fake ID or DL:

To be convicted of this crime under CA PC §470b, the prosecutor must prove each of the following elements beyond a reasonable doubt (CALCRIM No. 1921):

1. You possessed or displayed (or caused it to happen) a Driver's License or Government issued ID;
i. You may hold or possess something without actually physically touching it - controlling or having the right to control the thing is considered possession, even if not in your actual possession.

2. The DL or ID was altered, faked, copied, counterfeited, or forged;
i. A person alters a document if they add to, delete, or change a part of the document that affects another's legal, financial, or property rights.
ii. A person counterfeits a document if they change, manipulate, or imitate an item intending to pass it off as a genuine document.
iii. A person forges a document if they intentionally alter, manipulate, or create a document to derive an unlawful personal benefit (see CA PC §470).

3. You knew that the DL or ID was modified, faked, copied, or forged; AND

4. When you possessed or displayed such DL or ID, you intended to commit forgery by doing so.
i. A person intends to commit a forgery where they use a forged, modified, faked, or copied document (including an ID or DL) to cause another to suffer loss of or damage to a financial, property, or legal right.
ii. There is no requirement that another be actually defrauded or actually suffer damage to their financial, property, or legal rights as a result of your actions.

Continue reading "California Criminal law on Fake ID's" »

ADW and Aggravated Assault

Assault with a Deadly Weapon ("ADW") or Assault with Force Likely to Cause Great Bodily Injury ("Aggravated Assault") are punished under California Penal Code §245. The statute prohibits assaulting another using force likely to cause substantial physical injury, a deadly weapon (not a firearm), or a firearm.

ADW and Aggravated Assault can both be charged as either misdemeanors or felonies, but depending on the type of force threatened and the class of person threatened, the punishment can vary greatly. Speak with a San Diego Criminal Attorney to ensure the most effective representation in your case.

Elements of ADW and Aggravated Assault:

When charged with CA PC §245 Aggravated Assault or Assault with a Deadly Weapon (objects other than firearms) (1A below); OR Assault with a Deadly Weapon (a firearm)(1B below), the Prosecutor must prove (1A or 1B and 2-4):

1A. Your act (using force or instruments other than firearms) would probably directly produce the "application of force" on another that is likely to cause great bodily injury;
• "Application of force" means touching another (or an extension of them, i.e. their hat, a dog on a leash) in a rude, unwanted, or offensive manner, no matter how slight the possible touch (i.e. swinging at someone, waving a stick in front of someone's face). This also includes activity that could cause an indirect touch by an object (i.e. a bullet, a rock, a hammer, or a dog).
• "Great Bodily Injury" is a physical injury greater than a minor or moderate injury, like broken bones, significant lacerations, or having teeth knocked out.
1B. Your act, with a firearm, semiautomatic firearm, machine gun, assault weapon, or .50 BMG rife, would probably directly produce the "application of force" on another;

2. Your act was willful;
• Willful means intentional - the Prosecutor isn't required to prove you intended your act to result in injury to or even the touching of another - just that you intended to carry out the act.
• Note: Being voluntarily (willfully) intoxicated is not a defense - you cannot claim you were unaware of the risks posed by your act due to your intoxication.

3. When you acted, you knew of circumstances a reasonable person would have understood could likely directly result in the "application of force" on another;

AND
4. When you acted, that act could actually presently have resulted in the application of force on another.
• The act does is not required to have injured or even resulting in the touching of another, it only needs to be the type of act likely to produce the application of force on another.

Note: "Deadly Weapons" includes objects that aren't firearms as well as firearms. Commonplace objects like knives, bottles, steel-toed boots, a car, are considered Deadly Weapons, so long as they are used in a manner likely to cause significant physical injury or death to another (PC §245(a)(1)). "Firearms" are objects designed as weapons that fire projectiles from a barrel due to an explosion or some other form of combustion. "Firearms" includes semiautomatic firearms, machine guns, assault weapons, and .50 BMG rifles) (CALCRIM 875).

Consult with a San Diego criminal lawyer who is familiar with ADW and Aggravated Assault who can zealously and skillfully advocate on your behalf to ensure the best possible outcome in your case.

Consequences of Conviction:

If convicted under PC §245(a)(1) for either Assault with a Deadly Weapon other than a firearm or Assault with Force Likely to Cause Great Bodily Injury as a misdemeanor, you face a maximum of 1 year in jail and a fine of up to $10,000. If convicted of a felony, you face up to 4 years in state prison and a $10,000 fine.

The consequence of conviction under PC §245(a)(2) for Assault with a Firearm as a misdemeanor is no less than 6 months in jail and up to a year in jail, and a fine of $10,000. If convicted of a felony, you face up to 4 years in state prison and a $10,000 fine.

Continue reading "Aggravated Assault Laws discussion with San Diego Criminal Lawyer" »

Statutory Rape:

Pursuant to CA PC §261.5, if you have intercourse with a person under 18 years of age (a "minor"), it is statutory rape if one of the following circumstances is present, even if the intercourse was consensual:

1. If the age difference between you and the minor is no more than 3 years (ex: 17 and 20) → this is charged as a misdemeanor;
2. If the age difference between you and the minor is greater than 3 years (ex: 17 and 21) → this is charged as either a misdemeanor or felony;
3. If you are 21 or older and have intercourse with a minor younger than 16 → this is charged as either a misdemeanor or a felony.

In addition, depending on the facts and circumstances of the case, CA PC §261.5(e)(1) may subject you to civil penalties for statutory rape.

Speaking with a San Diego criminal lawyer is imperative to protecting your interests and securing the best possible outcome in the matter.

Consequences of Conviction for Rape:

Pursuant to CA PC §264, Rape is a felony punishable by incarceration in state prison for up to 8 years plus a fine of up to $10,000.

If the felony is committed against the will of a minor older than 14 years old through force, violence, duress, or threats, the possible punishment is increased to 11 years - but if the same is committed against the will of a minor 14 years old or younger, the punishment is increased to up to 13 years in state prison (CA PC §264).

If the court finds that the alleged rape victim suffered "serious bodily injury," an additional 5 years may be added on to the punishment (CA PC §12022.7).

The most significant consequences of a rape case, and in particular statutory rape is the registration requirement. Certain offenses involving the rape of a child of considerably younger age may require life-long sex registration. Registration requirements under CA PC 290 include a variety of sexual assault and sexual abuse charges. San Diego criminal attorney George Gedulin has helped clients facing these consequences. Getting a consultation early in your case and trying to get ahead of the prosecution can be the best way to avoid the devastating impact of such charges.

California imposes additional punishments for persons convicted of most rape crimes including registration as a sex offender, and a possible strike (under the "Three Strikes Law").

Common Defenses:

It is surprisingly easy to accuse another of rape and so many innocent people are falsely accused. Thus, it is imperative that you consult with a San Diego criminal attorney who understands the gravity of such accusations, and who can discuss your case with you to explore defenses. In California there are several effective legal defenses to rape, including (but not limited to):

1. Consent: If the accuser actually consented to intercourse, there is no rape. Alternatively, if you actually and reasonably believed the other party consented, this is also a defense (CALCRIM 1000).

2. Mistaken ID: Mistaken Identification by an eyewitness or an alleged victim is one of the most common defenses to rape charges. Factors like the stress of a dangerous situation, poor lighting, disguises, or outside influences from others (including parents or police) can lead to a mistaken ID.

3. No Penetration: If there was no actual penetration during the act you cannot be charged with rape, but you might be charged with some other offense for the act.

Continue reading "San Diego Criminal Law: Sexual Assault and Rape" »

DOMESTIC BATTERY: California Penal Code (PC) Section 243(e)(1)

In California, domestic violence is often referred to as domestic battery, spousal abuse, domestic abuse, or spousal battery. If you are charged for domestic battery under this penal code section, then you will be facing a misdemeanor--the least serious of the domestic battery charges.

However, any charge or investigation into a domestic violence claim can lead to serious and life-altering consequences. Domestic battery is a special type of battery charged in cases where the alleged victim had a domestic or family relation to the defendant. Domestic Violence cases are strongly prosecuted throughout San Diego and require a unique understanding of the law. Consult a San Diego defense attorney to put forth your best case.

WHAT IS DOMESTIC BATTERY?

Domestic Battery is treated differently under the law because it is against someone with whom you have a sexual or otherwise intimate relationship. In California, the basic definition for simple domestic battery is: you willfully inflict force or violence upon your intimate partner.

An intimate partner includes:

∙current or former spouse;
∙fiancé/fiancée;
∙current or former person with whom you share an intimate relationship;
∙someone with whom you live (or have lived with) and have a sexual relationship with;
∙anyone you are or were dating; and/or
∙the parent of your child.

Note: Under CA law, there is no distinction made between heterosexual and same-sex relationships.

WHAT FACTS MUST THE PROSECUTOR PROVE

Because domestic battery is the most common offense based upon false allegations and is sometimes brought about due to anger, jealousy, revenge or substance abuse, the prosecutor has the burden of proving the following elements:

1. that you willfully inflicted;
2. force or violence;
3. upon your intimate partner.

It is important to note that to be convicted of domestic battery under PC 243(e)(1), it is not necessary that the person was actually injured or "pained" by the accused. Rather, any unwanted touching--no matter how slight--can lead to a conviction.

"Allegations of any unwanted touching or contact of any kind can give a pace officer sufficient reason for an arrest. If charges of domestic battery are filed most judges in San Diego will issue a criminal protective order. These orders work like restraining orders to prohibit physical or electronic contact with any alleged victim. Preparing evidence and witness statements as early as possible are crucial in domestic violence cases." Read more from San Diego criminal attorney George Gedulin.

Continue reading "Domestic Violence: San Diego Criminal Lawyer update on Domestic Battery Law" »

California's Child Abuse Law: Penal Code (PC) 273(d)

Over the past several decades, California has increased the punishment and penalties for those convicted of child abuse. Although child abuse is a very serious situation when the claim is valid, false and misleading charges can devastate a family and cause irreparable harm.

If you are under investigation or have been charged with child abuse under PC 273(d), we encourage you to contact a local criminal lawyer with knowledge and experience in child abuse cases.

What must the prosecutor prove for a conviction under PC 273(d)?

Although there are several statutes in California that apply when a child's welfare is jeopardized, PC 273(d) is utilized if the child has suffered actual physical injury, not merely the probability of it.

To be convicted, the prosecutor must establish the following elements:

(1) that you willfully,
(2) inflicted upon a child cruel or unusual corporal punishment with
(3) an injury resulting in a traumatic condition.

What does "willful" mean?
The act must be intentional or on purpose. A good example: playing catch with your child. If your child misses the baseball and it hits him in the head causing a black eye, then you are not guilty of child abuse. Although you intended to throw the ball, you did not intend for your child to be injured by that throw.

On the other hand, if you throw the ball in anger at the fence and the ball bounces and strikes your child causing a black eye, then that is considered "willful".

What does "cruel or unusual corporal punishment" mean?
Corporal means physical contact. Spanking is corporal punishment. However, for the physical contact of spanking to be deemed cruel and unusual, it would most likely need to involve something other than your open hand, i.e., a wooden spoon, spatula, belt. Other examples of cruel and unusual punishment are: punching, shoving, shaking or choking a child in anger.

What does "traumatic condition" mean?
For the injury to be considered a "traumatic condition", the harm does not have to be serious. Rather, it can be any internal or external wound caused by the physical force.

Note: The seriousness or extent of the injury is considered by the prosecutor when determining whether to pursue a misdemeanor or felony charge.

San Diego criminal lawyer George Gedulin describes what child abuse cases involve. "These are serious charges that can throw a family into crisis. Abuse cases are investigated and prosecuted by special units that focus only on these offenses. Investigation and thorough knowledge of the law are essential to preparing a defense."

Continue reading "California Child Abuse Laws from San Diego criminal lawyer update" »

California's Child Endangerment Law: Penal Code (PC) 273(a)

Under California laws, child abuse is taken very seriously. Over the past 25 years, the child abuse laws have increased and have changed, making the punishment and penalties more severe.

What must the prosecutor prove for a conviction under PC 273(a)?

There are many applicable California statutes that prosecutors utilize when a child has been harmed. This article focuses on PC 273(a) child endangerment. The distinction with this section is that the child need not be physically harmed to be charged and convicted. Rather, there must be a probability that the actions of the accused could lead to an injury.

A child abuse "charge" -even without conviction--can be extremely damaging to a family's reputation. The personal and professional life of the accused, as well as his/her freedom is also at stake. Consequently, if you are being investigated or have already been charged, you need a skilled and professional defense lawyer on your side. Many criminal offenses are charged in connection with child endangerment including drug offenses and DUI's.

To be convicted of a misdemeanor, the prosecutor must establish the following three elements:

(1) that you were negligent,
(2) not acting while reasonably disciplining;
(3) and that one of the following occurred:
a. willfully inflicted unjustifiable physical pain or mental suffering on a child;
b. willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering;
c. caused/permitted a child in care/custody to be injured;
d. caused/permitted a child in care/custody to be in a dangerous situation.

To be convicted of a felony, the prosecutor must establish the above three elements and also that the child was in a situation where he/she could likely suffer "great bodily injury". Although "great bodily injury" is not specifically defined and is considered on a case-by-case basis, it includes significant or substantial injuries, but not minor or moderate harm.

San Diego criminal lawyer Mark Greany explains how felony child endangerment differs from a misdemeanor. "Allegations of GBI or serious physical harm to a child require specific elements to be proven by the prosecution. Evidence that a child would likely have suffered broken bones, lacerations or other serious harm are required for this offense. Felony child endangerment proceedings include a preliminary hearing. This hearing is like a mini-trial where a judge decides on limited testimony whether the prosecution has enough evidence to sustain the criminal charges."

Continue reading "Criminal Lawyer San Diego Report: Child Abuse and Child Endangerment laws " »

California's Elder Abuse Law: Penal Code (PC) 368

America's population is aging and this segment is repeatedly targeted by criminals. Thus, California enacted a powerful set of laws to help prevent abuse and neglect to its seniors. California's elder abuse statute PC 368 applies to any harm to any person age 65 or older.

Facing a charge or investigation of elder abuse is a devastating experience. Usually the parties involved are related in some form or another, and therefore, the situation is emotionally charged. We encourage you to contact us at Gedulin & Greany if you or someone you know is involved in an elder abuse situation. An experienced and compassionate San Diego criminal attorney can guide you through this difficult time and obtain the best possible outcome.

What is elder abuse?

Elder abuse encompasses many underlying crimes that affect victims of all ages, i.e., theft, assault/battery, identity theft. However, when the victim is 65 years of age or older, the accused could face much stricter penalties and punishment.

It is interesting to note that the laws no longer require that the victim be a "dependent adult", or mentally or physically challenged. Rather, anyone age 65 or older is within the elder abuse statute's protection.

What must the prosecutor prove for a conviction under PC 368?

To be convicted of a felony under PC 368, the prosecutor must establish the following elements:

(1) that you willfully or with criminal negligence either:
a. personally subjected an elder to unjustifiable physical pain or mental suffering, or
b. allowed another to do so; and
(2) the conduct occurred under circumstances likely to produce great bodily harm or death; and
(3) you knew or reasonably should have known that the victim was age 65 or older.

To be convicted of a misdemeanor under PC 368, the distinction is that the conduct was under circumstances that may have endangered the life or health of the elder. Conviction does NOT require conduct likely to produce great bodily harm or death.

What does "willful" mean?
The act must be intentional, deliberate, or on purpose. It is not willful, and therefore not abuse, if the caregiver is assisting his charge into bed and an injury occurs.

What does "criminal negligence" mean?
Criminal negligence means that the act was something more than ordinary carelessness or a mistake in judgment and is so unreasonable that your actions reflect a disregard for human life.

What is "unjustifiable pain or mental suffering"?
This refers to any pain or suffering that is not necessary or is deemed excessive under the circumstances.

What are the main defenses to a PC 368 charge?

A conviction under PC 368 can be devastating, and often based upon complex facts and evidence. Consequently, there are many applicable defenses, including:

∙you were falsely accused/wrongfully arrested: jealousy and emotion can cause people to make accusations when a loved one is injured, even if abuse is not the cause of the injury;

∙there is mistaken identity: maybe you are the caregiver, but you did not cause the abusive harm, someone else did;

∙there is insufficient evidence: the prosecutor must prove abuse beyond a reasonable doubt--you can claim that illness, accident, age-related afflictions were the actual cause.

San Diego criminal lawyer George Gedulin explains, "Elder abuse cases are commonly charged with other serious offenses including battery, domestic violence and abuse, rape. Felony charges are possible in any situation where physical injury occurred or a deadly weapon was involved."

What are the punishment and penalties for a PC 368 conviction?

PC 368 is a "wobbler" and can be charged as a felony or a misdemeanor, depending upon the facts surrounding the case, along with defendant's past criminal history.

Whether you are convicted of a felony or misdemeanor, your life will be severely affected, and you will face one or more of the following: probation, jail or prison time, fines into the thousands, an order to pay restitution, or an order to complete counseling or other programs.

Because an elder abuse charge can have very serious consequences, we encourage you to contact San Diego criminal attorneys George Gedulin and Mark Greany. We have years of experience handling diverse domestic and elder abuse cases, and therefore, we can advise you on and develop the best and strongest legal strategy for your case.

California's DUI Sentencing Enhancement: Child Endangerment

Although in California there are several sentencing enhancements applicable if you are convicted of DUI, this article focuses on California Vehicle Code Section (VC) 23572, child endangerment sentencing enhancement. If you are convicted of DUI and you had a minor passenger under the age of 14, then you are subject to sentencing enhancement and also child endangerment charges.

Judges and juries are very sympathetic when a child's welfare is in jeopardy. Consequently, any case involving a child is challenging to defend and the penalties are stiff. It is critical to have an experienced San Diego DUI lawyer on your side. At Gedulin & Greany, we have the expertise to represent you, thoroughly investigate your case, and determine the best strategy to beat the charges against you.

What is "sentencing enhancement"?

Sentencing enhancements are applicable in very specific situations and they can influence the severity of the penalties and punishment you face. In the case of a DUI charge, the prosecutor can include enhancements in many situations, including: passenger under the age of 14 (this article's focus); BAC of .15 or higher; excessive speeding; accident involvement; death related to the DUI; prior DUI conviction(s); age-related offenses; and refusal to take the chemical tests.

Note: Although enhancements are usually included at the time of filing charges, they can be added later.

What must the prosecutor prove for a minor passenger enhancement?

First and foremost, the prosecutor must prove the underlying DUI charge beyond a reasonable doubt. If that is established then the sentence can be enhanced. The prosecutor need only prove that there was a minor under age 14 in the care of the defendant at the time of the DUI. It is irrelevant how old the child is at the time of filing the charges or trial.

The prosecutor does not need to prove that you intended to place the child in harm's way or that you had a particular BAC. Rather, the prosecutor need only prove:

∙you were driving under the influence; and

∙there was a child under the age of fourteen at the time that you were driving under the influence.

If you successfully defend your DUI charge, or plea to certain lesser charges, then you cannot have increased penalties and punishment for having a minor passenger in the car.

Continue reading "DUI and Child Endangerment: A Primer by San Diego Criminal Lawyer George Gedulin" »

CYBERSTALKING: California Penal Code (PC) Section 646.9

Cyberstalking is "stalking" that is committed via electronic communication mediums.
Because the internet allows for anonymity, cyberstalking has emerged and has become a very visible threat and problem. California was one of the first states to specifically prohibit "cyber" stalking; it is prosecuted under California's stalking statute: PC 646.9.

If you have been charged--or you anticipate being charged--with cyberstalking, then you should contact an experienced San Diego criminal lawyer at Gedulin & Greany. We can determine the best approach to defend your case, or even prevent the filing of these very damaging charges against you.

WHAT IS CYBERSTALKING?

California's stalking statute, PC 646.9, was amended in 1998 to include a prohibition against cyberstalking by including "electronically communicated threats" within the definition of "credible threat", an element of the crime.

What is "cyberstalking"? The most common example is when someone harasses or threatens another person via the Internet, email, or other electronic communication, including chat rooms, discussion boards, texting, videos, etc.

Here are a few less obvious examples:
∙logging into someone's account to steal money or affect his/her credit;
∙posting false information on someone's website;
∙ordering something online in another person's name;
∙sending a threatening text message.

While you may not realize your actions are threatening, they could very well be punishable under PC 646.9.

WHAT MUST THE PROSECUTOR PROVE?

To be convicted of cyberstalking, the prosecutor must establish the following:

1. that the accused maliciously or willfully (knowingly and on purpose) harassed another;
2. that the threat was made and intended to be taken as a threat--it was "credible";
3. that the threat was intended to place the other in reasonable fear of his/her or a family member's safety; and
4. that the threat was communicated by means of the Internet or another electronic communication device.

Continue reading "San Diego Criminal Lawyer Mark Greany on Cyberstalking Crimes" »

A charge of domestic battery in California is typically brought under one of three sections: 243(e)(1), simple domestic battery; 243(d), aggravated battery; or 273.5, corporal (bodily) injury to a partner. The facts and circumstances surrounding the event determine which statute applies.

This article focuses on PC 273.5, a charge of corporal injury to a spouse or partner. Under this section, you could be facing a misdemeanor or a felony charge.

While any domestic violence charge has serious consequences, a felony can be devastating. Because your rights and freedom are at stake, you need an experienced and competent San Diego criminal lawyer to listen to the facts of your case and determine all available options and defenses.

WHAT FACTS MUST THE PROSECUTOR PROVE

To be convicted under PC 273.5, the prosecutor must prove the following three elements:

1. that you inflicted corporal injury upon a current or former spouse, a current or former cohabitant, or the mother/father of your child;
2. that you willfully inflicted that injury; and
3. that the injury resulted in a traumatic condition.

Unlike simple domestic battery (PC 243(e)(1)), a charge under PC 273.5 limits the definition of intimate partner to the following:

∙current or former spouse;
∙current or former cohabitant; and/or
∙the parent of your child.

What does corporal injury mean?
The victim must have suffered physical injury--not emotional or mental abuse--as a result of hitting, punching, shoving, biting, kicking, slapping, or any physical action.
What does willfully mean?

In the simplest terms, "willful" means: deliberate, purposeful, or with intent. You must have intended the act, not necessarily the injury.

What does "traumatic condition" mean?

A "traumatic condition" is a wound or bodily injury that is visible. The injury can be minor or serious. The injury does not need to be life threatening to be considered "traumatic".

Note: Under CA law, there is no distinction made between heterosexual and same-sex relationships.

Continue reading "San Diego Criminal Lawyer Update on Felony Domestic Battery: CA PC Section 273.5" »

CRIMINAL THREAT: California Penal Code (PC) Section 422

What is a "criminal threat"? The most common example of a "criminal threat" is when someone threatens to cause bodily injury or death to another person, causing that person to fear for his/her safety.

The law in California prohibiting criminal threats is PC Section 422. Criminal threat charges require the prosecution to show that the alleged threat was unequivocal. The most important factor in these cases is if the victim was reasonable in their fear of the threat. A statement made with no serious intent or any threat that most people would not take seriously does not meet the standards of the code. Criminal threat charges can become more serious when a weapon such as a firearm or knife is involved. Felony criminal threat exposes the defendant to a maximum of four years in state prison.

Modern technology, including social media and texting have increased these kinds of prosecutions. This type of communication gives the District Attorney access to permanent and written record of possibly incriminating communications. Threat cases are often charged along with assault and other related crimes. If you have been charged--or you anticipate being charged--with making a criminal threat, then you should contact an experienced Criminal Attorney in San Diego to determine the best approach to defend your case, or even prevent the filing of charges against you.

WHAT MUST THE PROSECUTOR PROVE

Criminal threats (formerly referred to as "terrorist threats") are taken very seriously. With that said, the court must weigh the evidence against our 1st Amendment Freedom of Speech rights.

To be convicted under PC 422, the prosecutor has a significant evidentiary burden and must establish the following 5 elements:

1. the accused willfully (knowingly and on purpose) threatened to commit a crime that would inflict great bodily injury or death on another;
2. the threat was made and intended to be taken as a threat;
3. the threat was unequivocal and specific so as to convey a gravity of purpose and the immediate prospect of execution;
4. the threat actually caused sustained fear (not just a fleeting, momentary, or transitory period) in the victim; and
5. the fear was reasonable (based upon the facts surrounding the event).

Continue reading "Criminal Threat General Discussion by Criminal Attorney in San Diego" »

IDENTITY THEFT: California Penal Code (PC) Sections 528-539, CA PC 530.5

Because of widespread technological advances, identity theft has become much more prevalent and is among the fastest growing crimes in California. As a result, new federal and state laws have been enacted to pursue and punish those who commit identity theft.

The Identity Theft Laws in California, PC Sections 528-539 (commonly known as the CA Identity Theft Statute), carry severe punishment to those convicted. CA Penal Code 530.5 outlines the many examples of identity theft cases filed by District Attorney. Identity theft charges can involve sophisticated investigations conducted over months or years. Federal charges under the U.S. Code can also be brought in some cases.

DEFINITION OF IDENTITY THEFT

The basic definition of identity theft is: It is against the law to use someone else's identifying information for an unlawful or fraudulent purpose. The offense does not require that a person benefit or personally use the identity of another. George Gedulin, a Criminal Lawyer in San Diego, explains that passing off or transmitting another's personal information to a third party can be charged by the State. Consequently, if you are charged or are still under investigation, you should contact an experienced San Defense Attorney. At Gedulin & Greany, we have the expertise to advise you on your best possible legal options, including a possible reduction or dismissal of the charges against you.

WHAT MUST THE PROSECUTOR PROVE

It is important to note that to be convicted of Identity Theft, it is not necessary that the person was actually defrauded or actually suffered financial, legal or property loss. Rather, you just must have had the intent to cause the loss.

Continue reading "San Diego Criminal Lawyer Overview of Identity Theft Crimes" »

ASSAULT AND BATTERY: CA Penal Code Sections 240-243

Assault and Battery under the CA Penal Code (PC) can range from a misdemeanor simple assault to felony assault and battery. What is the difference between assault and battery? A physical attack on another person--even without contact or harm--is an assault. On the other hand, if the person is actually subjected to harmful or offensive touching then a battery occurs. Depending upon the circumstances and factors surrounding your case, the fines can range from $1,000 to $10,000 and the jail/prison time can vary from 6 months to 4 years. The following information pertains mainly to the charges of simple assault and battery.

Being charged with the crime of assault and battery can have very serious consequences. Therefore, if you are charged, please contact San Diego Criminal Lawyer George Gedulin and Mark Greany. Because we have years of experience handling assault and battery cases, we can advise you on and develop the best and strongest legal strategy for your case.

What is Simple Assault and What are the Penalties/Punishment?

Under CA Penal Codes 240-241, the least serious assault and battery charge is misdemeanor simple assault, which is defined as: an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. For example, if you swing at someone with the intent to punch him, but you miss, then you have committed assault.

Thus, even if you do not physically contact or cause injury to another person, you can be charged with simple assault, and if convicted face a fine of $1,000 and 6 months in jail.

What is Simple Battery?

Under PC 242, the definition of battery is: any willful and unlawful use of force or violence upon another. What that means is that if you make any unwanted physical contact to another person, then you can be convicted of battery--even if the person is not injured or harmed. Any unwanted touching is considered battery.

Continue reading "Criminal Assault and Battery Charges Discussion From San Diego Criminal Lawyer" »

CALIFORNIA DUI (SOBRIETY) CHECKPOINTS: Can you fight the arrest?

DUI or Sobriety Checkpoints are authorized in California following a California Supreme Court ruling outlining the rules and regulations that law enforcement must adhere to. However, because these strict guidelines must be followed, checkpoint arrests can be successfully fought.

The two main vehicle code (VC) sections that police use to arrest someone during a DUI checkpoint stop are:

∙VC 23152a: Driving Under the Influence; and /or
∙VC 23152b: Driving with a BAC .08 or Greater

Why can police routinely stop us and why isn't it considered an unreasonable search? DUI Checkpoints are not considered a violation of our 4th Amendment right to protect against unreasonable searches because the police are using these stops to promote public safety and not to arrest drivers.

With that said, many people are arrested pursuant to a sobriety checkpoint. If you were arrested, please contact us! The experienced San Diego DUI Lawyer team of Gedulin & Greany have the expertise to advise you on the best possible legal defense.

What are the rules and regulations governing the checkpoint?

The checkpoints are highly regulated to ensure that motorists' rights are not infringed upon. A very important requirement is that the supervisory officers choose a location for the checkpoint that is effective in stopping drunk driving. After all, the main purpose in allowing sobriety checkpoints is to deter drunk driving and promote public health and safety. A DUI arrest can have consequences for the rest of your life, speak with a criminal attorney in San Diego to get the right start in your case.

Continue reading "DUI Checkpoints: Primer from a San Diego DUI Lawyer" »

California's Resisting Arrest Law: Penal Code (PC) 148(a)(1)

As most of us are aware, refusing to follow a police officer's instructions can lead to serious consequences, including a charge of what is commonly called "resisting arrest".

What exactly does "resisting arrest" mean under California PC 148(a)(1)? The very basic definition is: willfully resisting, delaying or otherwise obstructing an officer's or emergency medical technician's (EMT) performance of duties. In this article, we will explain what this means.

Because the punishment and sentencing can be severe, and at times life altering, we suggest you contact an experienced San Diego criminal lawyer. At Gedulin and Greany we have the expertise to provide you with the best defense options available to you.

What must the prosecutor prove for a conviction under PC 148?

There are three facts (elements) that the prosecutor must prove to find someone guilty of "resisting arrest":

(1) that the peace officer, police officer or EMT was lawfully performing his/her duties or attempting to perform those duties;
(2) that you willfully resisted, obstructed, or delayed his/her performance or attempted performance of those duties; and
(3) that you knew or reasonably should have known that he/she was a peace officer, police officer or EMT.

Element 1: What exactly does "duties" include?
Lawfully arresting someone is a basic police duty; the following can also be considered "duties":

∙traveling to the scene of a crime or accident;
∙interviewing people (witnesses) during an investigation; and/or
∙monitoring a criminal while in custody.

Thus, if you engage in any activities that hinder the officer's ability to conduct any of the above duties, you can be charged with resisting arrest--you don't have to actually be resisting an actual arrest.

Continue reading "San Diego Criminal Attorney on Resisting Arrest Charge" »