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Consequences for Driving Under The Influence
If you have been arrested for the crime of DUI, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
If you are operating a moving vehicle while under the influence of drugs or alcohol, you are considered to be driving under the influence. Driving under the influence of drugs or alcohol seriously impairs an individual’s ability to operate the vehicle safely, concentrate on the road, and significantly reduces your good judgement. You are considered intoxicated and too impaired to operate a vehicle when your Blood Alcohol Content (BAC) is 0.08% or higher. Under California’s zero tolerance policy, persons under the age of 21 may not operate a vehicle if their BAC is higher than 0.01%. If your BAC exceeds the legal limit, you will be arrested and charged with a DUI.
Driving under the influence (DUI) is a serious crime that society, law enforcement, and the courts do not take lightly because everyone knows (or should know) that driving while intoxicated dramatically increases the chances of causing an accident, injury or death. If you have been charged and you are subsequently convicted of a DUI, you could face harsh punishment including jail time, significant monetary fines, court-ordered probation, suspension of your driver’s license, cancellation of your insurance and huge increased insurance costs for years or decades, community service, loss of your job or career, difficulty obtaining future employment, and a permanent criminal record.
If you have been charged with a DUI in Los Angeles you are facing that long list of punishments and personal expenses that will follow you for years. The best thing you can do for yourself is retain the services of a highly skilled DUI defense attorney. DUI Defense attorney, Max Gorby, has handled hundreds of DUI defense cases and is well-versed in criminal defense law. Max Gorby know the system, the courts, the judges, the DA’s and can help you develop a smart strategy so that you can minimize the cost, pain and anguish that the system has in store for you if you do nothing, plead guilty, or attempt to defend yourself.
In California, driving with a blood alcohol content of .08% or greater is illegal. The police officer must have probable cause that you are driving under the influence. The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. As for a DUI case, the officer cannot randomly stop your vehicle. He must have “specific articulable facts” that a crime is taking place before he initiates a traffic stop as the case of Terry V. Ohio clearly dictates. It seems arbitrary and often unfair to many that probable cause is determined solely by the law enforcement officers in the field. Over the years, there have been many questions and challenges to the validity of police officers being the authorities of “Probable Cause” as it pertains to Drunk Driving, but it has been accepted in both courts and case law. And while that means that we are all stuck with police being the determiners of probable cause, we all must remember that a police officer has to have valid probable cause if he observes any Vehicle Code Violation whether it has to do with alcohol impairment or any other reason for a traffic stop. Probable Cause is a prerequisite element to be found guilty of and charged with a California DUI. It is also the most often-challenged element to many DUI cases. Many cases are tossed out when probable cause is examined closely, followed by the officer’s adherence to procedure, and a host of other issues. A law enforcement officer is allowed to examine an individual for violation of the law related to drunk driving if there is some “acceptable reason” to examine the state of the driver. Such time-tested reasons include traffic violations committed during the operation of the vehicle, vehicle operation that is indicative of being under the influence, or even if the individual was seen leaving an establishment where alcohol is served.
The officer must have a reasonable suspicion that you are driving intoxicated even before he initiates a traffic stop. The officer will likely testify and write in his police report that the probable cause to initiate a traffic stop was a pattern of driving that was consistent with someone who was under the influence of drugs or alcohol. In your defense it would be important to highlight the positive elements of your driving. Also, evidence can be introduced at trial to show that the majority of traffic violations are committed by people who are sober. Further, if the officer uses speeding as a reason for the traffic stop, the defense can argue that the National Highway Traffic Safety Administration (NHTSA), does not recognize speeding as a characteristic of drunk driving. The officer must also have probable cause in order to initiate a DUI investigation. As a DUI progress, each level of the investigation, i.e. the stop, the detention, and ultimately the arrest, must increase in the amount of probable cause. First as the officer is attempting to determine if you were driving under the influence, he will commonly use a standard set of indications. He will speak to you and ask you questions, to determine your fluidity of speech and if he is able to detect alcohol on your breath.
Once a law enforcement officer has puller over a driver for suspicion of driving under the influence in Los Angeles, the officer has received training to look for certain signs of intoxication. The following is a list of what officers look for in order to determine if a person may be under the influence:
▪ Slurred speech
▪ Speaking incoherently
▪ Slow verbal responses
▪ Balance and coordination difficulties (swaying, falling, or leaning)
▪ Smells of alcohol
▪ Does not keep the story straight, gives numerous different answers to questions
▪ Trouble getting out of the motor vehicle
▪ Difficulty with fine motor skills (i.e. handling driver’s license and documentation)
▪ Unaware of the volume of voice (speaking too softly or loudly)
▪ Bloodshot eyes
▪ Flushed face
Odor on the breath is the most immediate symptom, but having that odor does not necessarily mean a driver was under the influence while driving in Los Angeles County. Experienced DUI defense attorney, Max Gorby, can help dispute the charges and evidence. Much of this evidence in subjective and open for dispute.
Once that is determined, he will ask you to perform a variety of field sobriety tests (FST’s).
Although every officer and every police department uses slightly different tests to determine sobriety, there are only three recognized tests that accurately identifies physical impairment according to the National Highway Traffic Safety Administration. The only three tests recognized are: 1) Horizontal Gaze Nystagmus or HGN, 2) Walk and Turn, and 3) the one leg stand test.
In the Horizontal Gaze Nystagmus, the officer will look at the drivers pupils to determine if they involuntarily bounce or jerk when asked to follow a finger or pen. Although most people will display jerking at some point close to the outer edges of the eye, a person who is intoxicated will display this jerking before the eye looks to a 45 degree angle.
- Horizontal Gaze Nystagmus (HGN) Sobriety Test: The Horizontal Gaze Nystagmus (HGN) test is considered by many law enforcement officers to be the most effective technique to provide evidence of alcohol in a motorist’s system. The normal variation in human physical and cognitive capabilities, and the effects of alcohol tolerance, can result in uncertainties when arrest decisions are made exclusively on the basis of physical and/or cognitive performance tests. These uncertainties have resulted in many DWI suspects being released rather than detained and transported to another location for evidentiary chemical testing. This is because some experienced drinkers can perform physical and cognitive tests acceptably, even with a BAC greater than 0.10 percent. However, experienced drinkers cannot conceal the physiological effects of alcohol from an officer who is skilled in HGN administration, because Horizontal Gaze Nystagmus is an involuntary reaction over which an individual has absolutely no control.
- Walk and Turn Field Sobriety Test: In a walk and turn field sobriety test in Los Angeles County, the driver is asked to take nine steps touching their heel to toe and imagine or use a straight line, pivot after nine and turn around and return taking nine steps on the way back. The officer will look for missed steps or other problems to indicate intoxication.
- Standing on One Leg Sobriety Test: The one leg stand field sobriety test will ask the driver to raise a foot six inches off the ground, hold still, count from 1001 to 1030 and look down at the foot. If the officer sees signs of difficulty he will conclude that the individual is intoxicated.
- Rhomberg Balance Sobriety Test: There are other Field Sobriety Tests that officers use to determine a DUI in Los Angeles County, all of which have no scientific basis and should be strongly disputed in court by experienced LA DUI attorney, Max Gorby. In Los Angeles, the LAPD have been trained and instructed to administer the Rhomberg balance sobriety test. This test will have the driver estimate 30 seconds while keeping their eyes closed and stand still with their head slightly tilted back. Alcohol may have the affect of slowing down a person’s internal clock.
- Finger to Nose Field Sobriety Test: Another unproven field sobriety test that is used in a DUI investigation in Los Angeles is the finger to nose test. The officer instructs the driver to touch the tip of their nose while keeping the eyes closed and head tilted back. The officer will determine if the driver is touching the tip of the nose or other parts of the nose and other mistakes.
- Finger Count Sobriety Test: The final test used in Los Angeles County in a DUI investigation with no scientific proof of reliability is the called the finger count test. The officer will instruct the DUI suspect to touch their thumb to the tip of the index finger and counts to one. The driver then touches each of the other finger counting up to four, and then repeating it going backwards.
If, during your initial stop by law enforcement for a DUI in Los Angeles, the officer asked you to perform one of the above mentioned tests, my office has the scientific data to refute the results of these test. These physical tests are proven to be unreliable and experienced DUI attorney Max Gorby, will dispute each and every test in court.
Driver arrested on suspicion of DUI three times in five days – latimes.com
Driver arrested on suspicion of DUI three times in five days – latimes.com.
An San Diego man has been arrested for suspected drunken driving three times in the last five days, deputies said Sunday.
Sheriff’s deputies were called to a report of a drunken driver on Seacoast Drive in Imperial Beach about 6:30 a.m. Sunday.
When they arrived they found the driver, David Lakarnafeaux, 44, had walked inside a bar on Palm Avenue and Seacoast Drive in Imperial Beach, Sgt. Ted Greenwald said.
When deputies arrested him, they discovered that Lakarnafeaux had already been arrested for the same charge twice last week: on Tuesday by San Diego police and on Thursday by the California Highway Patrol, Greenwald said.
Lakarnafeaux was booked into San Diego Central Jail, where he was held in lieu of $100,000 bail. He was scheduled to be arraigned at 9 a.m. Wednesday in the El Cajon courthouse, according to jail records.
If you have been arrested for DUI a violation of vehicle code section 23152 (a), you will need to consult with an experienced Los Angeles Criminal Defense Lawyer. At the Law Office of Max Gorby, we will provide you with the aggressive defense you need to fight your DUI charges. We have decades of experience and a solid understanding of defenses to DUI laws in Los Angeles and throughout California. We have developed effective negotiation tactics for fighting DUI charges. If you have been charged with a criminal offense related to DUI, you could be facing a conviction that will adversly affect your life forever. Our Los Angeles DUI lawyers can help you fight these charges. Contact our office for a free case evaluation at 310-200-9651.
Two Newhall teens killed in suspected drunk-driving crash – latimes.com
Two Newhall teenagers died in a suspected drunk-driving crash in Castaic on Saturday night.
Kevin Sanchez, 16, and Richard Lagunas, 19, were passengers in a 1999 Ford Escort driven by Carlos Hernandez, 28, also of Newhall, the California Highway Patrol said. Hernandez and a third passenger survived.
The car was eastbound on Hasley Canyon Road, approaching Commerce Center Drive, at about 11:35 p.m. when it went off the road. The car hit a concrete curb bordering the roadway and then vaulted off the road onto the raised shoulder, where it crashed into a plastic fence and a number of trees, according to a CHP statement.
The front-seat passenger, a 17-year-old boy whose name was not released, was ejected and seriously injured. Sanchez and Lagunas, who were sitting in the back, were severely injured. Both were pronounced dead at the scene.
The driver, Hernandez, also sustained major injuries. He and the third passenger were transported to Henry Mayo Newhall Memorial Hospital, where they remained Sunday.
According to a CHP statement, the three passengers were not wearing seat belts and alcohol is considered to be a factor in the crash. Hernandez faces arrest if he recovers, CHP officials said.
Two Newhall teens killed in suspected drunk-driving crash – latimes.com.
If you have been arrested for DUI a violation of VEHICLE CODE section 23153, you will need to consult with an experienced Los Angeles DUI Lawyer. At the Law Office of Max Gorby, we will provide you with the aggressive defense you need to fight your DUI charges. We have decades of experience and a solid understanding of defenses to DUI laws in Los Angeles and throughout California. We have developed effective negotiation tactics for fighting DUI charges.
If you have been charged with a criminal offense related to DUI, you could be facing a conviction for DUI that will adversly affect your life forever. Our Los Angeles DUI lawyers can help you fight these charges. Contact our office for a free case evaluation.
More than 14 tons of marijuana seized after cross-border tunnel is discovered – latimes.com
More than 14 tons of marijuana seized after cross-border tunnel is discovered – latimes.com.
U.S. and Mexican authorities on Wednesday announced the seizure of more than 14 tons of marijuana and the discovery of a large cross-border tunnel linking a warehouse in San Diego to Tijuana.
The drug seizure was part of the multi-agency investigation that was coordinated with the Mexican military, authorities said.
The discovery of the tunnel demonstrates the continuing efforts of Mexican organized crime groups to circumvent bolstered border defenses by constructing sophisticated subterranean passageways that can handle enormous drug shipments.
Dozens of tunnels have been discovered in recent years, most of them in the same light industrial area of San Diego’s Otay Mesa neighborhood, where this most recent passageway was discovered on Tuesday.
The tunnel was linked to an industrial building near the Tijuana airport, where Mexican soldiers Wednesday morning stood guard over of about three tons of neatly stacked marijuana bundles. Dozens of the packages were labeled with pictures of Capt. America, the symbol used by a major operator of the Sinaloa drug cartel in Tijuana, said Mexican Gen. Gilberto Landeros Briseno, in an interview with the Mexican media.
The Sinaloa drug cartel, Mexico’s most powerful organized crime group, has a long history of constructing tunnels to funnel drugs into the U.S. Authorities in the U.S. said they will provide more details at an afternoon news conference in San Diego.
If you have been arrested for the crime of Petty Theft (Larceny), call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code Section 484 – (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud.
An estimated 2,152 fewer defendants will be sent to state prison by December 2011 because of California Assembly Bill 2372 (2009-2010 regular session), which raised the threshold dollar amount separating petty theft and grand theft from $400 to $950. The California Grocers Association opposed the bill, while the following organizations supported it: American Civil Liberties Union, California Attorneys for Criminal Justice, California Coalition for Women Prisoners, California Public Defenders Association, Friends Committee on Legislation, Legal Services for Prisoners with Children and SEIU Local 1000.
Recent Cases:
People v. Vinson, F059302, COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT, 193 Cal. App. 4th 1190; 123 Cal. Rptr. 3d 625; 2011 Cal. App. LEXIS 357, March 28, 2011, Filed
Effective September 9, 2010, Assembly Bill No. 1844 (2009–2010 Reg. Sess.), the Chelsea King Child Predator Prevention Act of 2010 (hereafter Assembly Bill 1844 or the act), amended section 666 to provide, in pertinent part: “(a) Notwithstanding Section 490 [(specifying the punishment for petty theft)], every person who, having been convicted three or more times of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.” (Italics added.)
Clearly, new subdivision (a) of section 666 requires proof of at least three prior convictions, not just one, for individuals who, have not suffered prior serious or violent felony convictions and who are not required to register as sex offenders. 6
It is true that the punishment for violating the statute is the same under subdivision (a) of current section 666 as it was under former section 666, i.e., imprisonment in the county jail not exceeding one year or in state prison. In other words, both versions of the statute describe a “wobbler”—an offense that is punishable either as a misdemeanor or as a felony. To be eligible for felony sentencing under section 666 as amended, however, it is no longer enough that the defendant previously have been convicted of a single specified theft-related conviction. Instead, three or more such qualifying convictions are now required. This change to section 666‘s sentencing factor (see People v. Bouzas (1991) 53 Cal.3d 467, 480 [279 Cal. Rptr. 847, 807 P.2d 1076]) is akin to adding an element to a crime or an enhancement, and benefits a defendant by making it less likely that he or she will qualify for felony-level punishment. Accordingly, Estrada’s reasoning applies. (See People v. Flores (1995) 37 Cal.App.4th 1566, 1571 [44 Cal. Rptr. 2d 585].)
If you have been arrested for the crime of Burlgary, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 459 — Definition. “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the [California] Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”
California Penal Code 461 — Punishment. “Burglary is punishable as follows: 1. Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. 2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.”
CALJIC 14.52 Burglary; inhabited dwelling, defined. “An inhabited dwelling house is a structure which is currently used as a dwelling whether occupied or not. It is inhabited although the occupants are temporarily absent.”
California Penal Code 466 — Burglary instruments or tools. “Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the [California] Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. [Italics added] Any of the structures mentioned in [California Penal Code] Section 459 [burglary] shall be deemed to be a building within the meaning of this section.”
CALJIC 14.50 Burglary. “It does not matter whether the intent with which the entry was made was thereafter carried out.”
CALJIC 4.35 Ignorance or Mistake of Fact “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent in this case for California burglary is not a crime. Thus a person is not guilty of a crime if he commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”
Recent Cases:
Magness v. Superior Court, C066601, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 196 Cal. App. 4th 630; 126 Cal. Rptr. 3d 318; 2011 Cal. App. LEXIS 714, June 10, 2011, Filed
Standing in the driveway of a home, with the intent to commit larceny inside, a person uses a remote control to open a garage door, but then flees before going inside the garage when the homeowner responds to the opening door. Has the person committed first degree burglary or just attempted to do so? Our answer is that under Penal Code section 459, there was no burglary, only an attempted burglary. Because that conclusion means, in this case, that petitioner Christopher Magness was held to answer for first degree burglary without probable cause, we will order that a writ of prohibition issue barring further prosecution of him for that crime.
The interest sought to be protected by the common law crime of burglary was clear. At common law, burglary was the breaking and entering of a dwelling in the nighttime. The law was intended to protect the sanctity of a person’s home during the night hours when the resident was most vulnerable. As one commentator observed: ‘The predominant factor underlying common law burglary was the desire to protect the security of the home, and the person within his home. Burglary was not an offense against property, real or personal, but an offense against the habitation, for it could only be committed against the dwelling of another. … The dwelling was sacred, but a duty was imposed on the owner to protect himself as well as looking to the law for protection. The intruder had to break and enter; if the owner left the door open, his carelessness would allow the intruder to go unpunished. The offense had to occur at night; in the daytime home-owners were not asleep, and could detect the intruder and protect their homes.
“In California, as in other states, the scope of the burglary law has been greatly expanded. There is no requirement of a breaking; an entry alone is sufficient. The crime is not limited to dwellings, but includes entry into a wide variety of structures. The crime need not be committed at night. …” People v. Davis, supra, 18 Cal.4th at pp. 720–721
People v. Lopez, H034619, COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 198 Cal. App. 4th 698; 129 Cal. Rptr. 3d 583; 2011 Cal. App. LEXIS 1089, August 19, 2011, Filed
CALCRIM No. 376 “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt then you may conclude that the evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when, the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
CALCRIM No. 376 is based on a “long-standing rule of law that allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances that tend to show guilt.” People v. Barker (2001) 91 Cal.App.4th 1166, 1173 [111 Cal. Rptr. 2d 403].
If you have been arrested for the crime of Resisting Arrest, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 148(a)(1) PC — Resisting arrest. (“(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
California Penal Code 148 – Resisting, delaying, or obstructing officer or EMT. (“(2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or in the state prison. (c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in the state prison. (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or in the state prison.”
If you have been arrested for the crime of Criminal Threats, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code section 422 PC – Criminal Threats – “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.”
California Jury Instructions, Criminal, “CALJIC” 9.94 – Criminal threats. (“Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, is guilty of a violation of Penal Code section 422, a crime. [“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.] [“Immediate family” means any spouse, whether by marriage or not, parent, child, __________, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.] [“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.] The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory. There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended. The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met. In order to prove this crime, each of the following elements must be proved: 1 A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person; 2 The person who made the threat did so with the specific intent that the statement be taken as a threat; 3 The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device; 4 The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and 5 The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family’s safety]. It is immaterial whether the person who made the threat actually intended to carry it out.”)
If you have been arrested for the crime of Domestic Violence, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 273.5 PC — Domestic violence. (“(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
CALJIC 9.35 — Spouse or cohabitant beating). (“In order to prove this crime [that is, willful infliction of corporal injury of a spouse, cohabitant, or fellow parent under California Penal Code 273.5], each of the following elements must be proved:[1] A person inflicted bodily injury upon [[his] [her] [former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child]; [2] The infliction of bodily injury was willful [and unlawful]; and [3] The bodily injury resulted in a traumatic condition.”
California Penal Code 17 — felony / misdemeanor. Penal Code 17(b)(3) states “(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [as is a California Penal Code 273.5 willful infliction of corporal injury on a spouse, cohabitant, or fellow parent], it is a misdemeanor for all purposes under the following circumstances:…(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”
Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.
The domestic violence laws say “abuse” is:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
- Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.
Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.
Types of Domestic Violence Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.
To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.
Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.
“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.
At the end of those 3 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
If you also have a family law case, call Los Angeles Criminal Defense Lawyer Max Gorby immediately. Anything you say in that case can be used against you in the criminal case. Tell the family law judge that you also have a criminal case.
The most common question in all domestic violence situations is the following:
What if the protected person wants to drop the charges?
The City Attorney or District Attorney (D.A.)–not the protected person–decides if criminal charges will be filed against you. They will decide based on the facts in the police report.
Possible Lesser or Reduced Charges During Plea Bargain Negotiations:
California Penal Code 243(e)(1) is a battery committed upon a spouse, former spouse, cohabitant, parent of the defendant’s child, fiancé, or anyone with whom the defendant has (or previously had) a dating relationship. California Penal Code Section 243(e)(1) domestic battery is a misdemeanor and carries a penalty of up to one year of county jail.
California Penal Code 602 PC — Trespass. This code lists a variety of ways that trespasses take place, but it is essentially summed up as entering or remaining on another’s property without the right to do so. This and disturbing the peace under endnote 46 below, are common plea bargains used in California Penal Code 273.5 PC willful infliction of corporal injury on a spouse, cohabitant, or fellow parent prosecutions.
California Penal Code 415 PC — Disturbing the peace. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
As of January 1, 2000, there are stricter laws regarding domestic violence in California. The new laws include the following:
California police are now mandated to arrest offenders who violate domestic violence restraining orders.
Expands coverage of domestic violence criminal law protections to include former spouses and cohabitants (Penal Code §243(e) and 273.5)
Mandates that police remove all firearms at domestic violence scenes (SB 218).
Every domestic violence victim in California who reports to police is eligible for up to $2,000 to cover costs of housing relocation.
Requires that Family Courts make a presumption that giving custody to a perpetrator of domestic violence is detrimental to the child (Family Code §3044).
Provides that an employer may not discharge, discriminate, or retaliate against an employee, domestic violence victim who takes time off work to “attempt to …..ensure the health, safety, or welfare of a domestic violence victim or his or her child” (Labor Code §230)
Recent Case Law Decisions:
| People v. Martin, S175356, SUPREME COURT OF CALIFORNIA, 51 Cal. 4th 75; 244 P.3d 496; 119 Cal. Rptr. 3d 99; 2010 Cal. LEXIS 13374, December 30, 2010 |
- To be clear, we are concluding, as a matter of substantive law, that the trial court did not err when it imposed the domestic violence probation conditions, which were based on a dismissed charge, because defendant expressly agreed to those very conditions, thereby waiving the right this court recognized in Harvey, supra, 25 Cal.3d at page 758. We are not here addressing any procedural questions regarding preservation or forfeiture of appellate issues. Such questions might be presented if, instead of expressly agreeing to the domestic violence probation conditions, defendant instead had failed to object, or had withdrawn his objection, to those conditions. (See People v. Welch (1993) 5 Cal.4th 228, 234–237 [19 Cal. Rptr. 2d 520, 851 P.2d 802] [trial court objection generally required to preserve challenge to probation condition].) Likewise, we are not considering a situation in which a defendant, after the trial court has overruled an objection to proposed probation conditions, has merely agreed to accept the grant of probation without expressly agreeing to the challenged probation conditions.
If you have been arrested for the crime of Battery or Spousal Battery, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 242 — Battery. “Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.”
Simple battery. “The slightest touching can be enough to commit a battery if it is done in a rude or angry way.”
PC 242 Simple battery “- Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”
California Penal Code 243(e)(1) – Domestic Battery / Spousal Battery
California Penal Code 243(e)(1) is a battery committed upon a spouse, former spouse, cohabitant, parent of the defendant’s child, fiancé, or anyone with whom the defendant has (or previously had) a dating relationship. California Penal Code Section 243(e)(1) domestic battery is a misdemeanor and carries a penalty of up to one year of county jail. Penal Code 243 e 1 is similar to Penal Code 273.5, except that it does not require the “traumatic condition” element. That is to say, the prosecutor need not show that there was a visible injury to the victim.
243. (a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. (b) When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
Find more information on enrolling in a batterers program in Los Angeles County.
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