PRACTICE AREAS OVERVIEW
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- Assault With A Deadly Weapon
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- Law In The News
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- Negligent Discharge Of A Firearm
- Petty Theft
- Possession of Child Pornography
- Prostitution
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- Resisting Arrest
- Robbery
- Sexual Battery
- Sodomy
- Spousal Battery
- Statutory Rape
- Vehicular Manslaughter
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If you have been arrested for the crime of Negligent Discharge of a Firearm, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 246.3 PC — Negligent discharge of a firearm / BB. (“(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (b) Except as otherwise authorized by law, any person who willfully discharges a BB device in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year.”
California Jury Instructions, Criminal CALJIC 9.03.3 — Negligent discharge of a firearm. (“In order to prove this crime, each of the following elements must be proved: [1] A person willfully [and unlawfully] discharged a firearm; [2] The person who discharged the firearm did so in a grossly negligent manner; and [3] The discharge of the firearm was done in a manner which could result in injury or death to a person.”
CALJIC 1.20 — Willfully. (“The word “willfully” when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.”
Judicial Council Of California Criminal Jury Instruction (CALCRIM 970) — Negligent discharge of a firearm. (“Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: [1] He or she acts in a reckless way that creates a high risk of death or great bodily injury. AND [2] A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”
If you have been arrested for the crime of Assault with a Firearm, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 245 PC — Assault with a firearm. (“(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment. (3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years. (b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.”
CALJIC 9.02.1 — Assault with a firearm. (“In order to prove this crime [that is, assault with a firearm], each of the following elements must be proved: [1] A person was assaulted; and [2] The assault was committed with [a machinegun] [an assault weapon] [a semiautomatic firearm] [a .50 BMG rifle].”
California Penal Code 12021 — Felon with a firearm. (“(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6 [which includes violations of California’s assault with a firearm law]…and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony…(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of…[California Penal Code] 245…and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.”
https://www.youtube.com/watch?v=bUwNXRE4Xjo&feature=youtu.be
If you have been arrested for the crime of Assault with a Deadly Weapon (ADW), contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
- California Penal Code 245(a)(1) — Assault with deadly weapon [ADW]
- California Penal Code 12022.7 PC — California Three Strikes Law
California Penal Code 245(a)(1) — Assault with deadly weapon [ADW] or force likely to produce great bodily injury; punishment. (“(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”
CALJIC 9.02 — Assault With a Deadly Weapon [ADW] or by Means of Force Likely to Produce Great Bodily Injury or With Firearm. (“In order to prove this crime, each of the following elements must be proved: [1] A person was assaulted; and [2] The assault was committed [with a deadly weapon or instrument, other than a firearm] [or] [by means of force likely to produce great bodily injury] [with a firearm].”
California Criminal Jury Instruction 875 — Assault With Deadly Weapon [ADW] or Force Likely to Produce Great Bodily Injury. (“[The People are not required to prove that the defendant actually touched someone.]” and “No one needs to actually have been injured by defendant’s act. ”
“The hand or foot cannot be a weapon, as used in Penal Code § 245(a)(1) [assault with a deadly weapon]. The term “deadly weapon” implies an object extrinsic to the body. However, the use of hands or feet may constitute an assault by means of force likely to produce great bodily injury.”
California Penal Code 12022.7 PC — California Three Strikes Law, violent felonies. Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. (“(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including a California ADW] shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including a California assault with a deadly weapon] which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony [including California Penal Code 245(a)(1)] shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony [including a California ADW] shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”) See also California Penal Code 667.5 — Prior prison terms; enhancement of prison terms for new offenses. (“(c) For the purpose of this section, “violent felony” shall mean any of the following: (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice…”) See also California Penal Code 667 — Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California’s Three Strikes Law). (“(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”
Penal Code 245(a)(2). “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”
California Penal Code 245(d) ADW upon a peace officer. (“(d)(1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years. (2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years. (3) Any person who commits an assault with a machinegun, as defined in Section [California Penal Code section] 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 6, 9, or 12 years.”
If you have been arrested for the crime of Assault, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 240 PC — Assault. “ASSAULT DEFINED. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
California Penal Code 241 — Assault, punishment. “(a) An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment.”
Consent may be a complete or partial defense to assault.
Four elements were required at common law:
- The apparent, present ability to carry out;
- An unlawful attempt;
- To commit a violent injury;
- Upon another.
The crime of “assault” in California is usually filed as a misdemeanor since there was not actual contact, unless committed against a police officer. Assault is an act that is likely to result in the attempt to commit a battery. There is no requirement that an assault must actually result in violence or a forceful act upon another.
If you have been arrested for the crime of False Imprisonment, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 236 PC — California’s false imprisonment law. “False imprisonment is the unlawful violation of the personal liberty of another.”
False imprisonment is a restraint of a person in a bounded area without justification or consent.
CALJIC 16.135 — False imprisonment. “False imprisonment does not require that there be confinement in a jail or prison.”
California Penal Code 237 PC — California’s false imprisonment law; punishment. (“(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.
If you have been arrested for the crime of Carjacking, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
Penal Code 215 PC California’s carjacking law. (“(a) “Carjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. (b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years. (c) This section shall not be construed to supersede or affect Section 211. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.”
CALJIC” 9.46 – Penal Code 215 PC California’s carjacking law. (“[Defendant is accused [in Count[s] ] of having committed the crime of carjacking, a violation of Section 215 of the Penal Code.] Every person who takes a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear, is guilty of the crime of carjacking in violation of Penal Code Section 215. “Against the will” means without consent. The words “take” or “taking” require proof of [(1)] taking possession of a motor vehicle, and (2) movement of the vehicle, slight or otherwise. [“Immediate presence” means an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.] In order to prove this crime, each of the following elements must be proved: 1 A person had possession of a motor vehicle; 2 The motor vehicle was taken from his or her person or immediate presence, or from the person or immediate presence of a passenger of such vehicle; 3 The motor vehicle was taken against the will of the person in possession; 4 The taking was accomplished by means of force or fear; and 5 The person taking the vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession.”
Penal Code 12022.7 PC — California’s great bodily injury sentencing enhancement. (“(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [such as Penal Code 215 PC carjacking] which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, “domestic violence” has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, “great bodily injury” means a significant or substantial physical injury.”
Criminal street gang sentencing enhancement (“(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.”
If you have been arrested for the crime of Robbery, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 211 — California’s robbery law. (“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
California Penal Code212.5 PC — Robbery; degrees. (“(a) Every robbery of any person who is performing his or her duties as an operator of any bus, taxicab, cable car, streetcar, trackless trolley, or other vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, and used for the transportation of persons for hire, every robbery of any passenger which is perpetrated on any of these vehicles, and every robbery which is perpetrated in an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, a trailer coach as defined in the Vehicle Code which is inhabited, or the inhabited portion of any other building is robbery of the first degree. (b) Every robbery of any person while using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine is robbery of the first degree. (c) All kinds of robbery other than those listed in subdivisions (a) and (b) are of the second degree.”
California Penal Code 213 PC — Robbery; punishment. (“(a) Robbery is punishable as follows: (1) Robbery of the first degree is punishable as follows: (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code, which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, a trailer coach as defined in the Vehicle Code, which is inhabited, or the inhabited portion of any other building, by imprisonment in the state prison for three, six, or nine years. (B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years. (2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years. (b) Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by imprisonment in the state prison.”
Penal Code 12022.7 PC — California’s great bodily injury sentencing enhancement. (“(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, “domestic violence” has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, “great bodily injury” means a significant or substantial physical injury.”
If you have been arrested for the crime of Involuntary Manslaughter, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 192 PC — California’s involuntary manslaughter law. (“Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:..(b) Involuntary — in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”
CALJIC 8.45 Involuntary manslaughter. (“In order to prove this crime, each of the following elements must be proved: [1] A human being was killed; and [2] The killing was unlawful. A killing is unlawful within the meaning of this instruction if it occurred: [1] During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or [2] In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”
“Manslaughter is the unlawful killing of a human being without malice. It is of three kinds…(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.”
CALJIC 8.46 — Due caution and circumspection, defined. (“The term “without due caution and circumspection” refers to [a] negligent act[s] which [is] [are] aggravated, reckless and flagrant and which [is] [are] such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such act[s]. The facts must be such that the consequences of the negligent act[s] could reasonably have been foreseen. It must also appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act.
If you have been arrested for the crime of Prostitution, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
Prostitution. “[1] A person solicited another person to engage in any act of prostitution; and [2] That person did so with the specific intent to engage in an act of prostitution.”
California Penal Code 647 — Disorderly conduct. “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.”
CALJIC 16.420 – Prostitution. (“In order to prove this crime, each of the following elements must be proved: [1] A person engaged in an act of prostitution; and [2] The person did so willfully.]”
“Prostitution” is engaging in [sexual intercourse] [or] [any lewd act between persons] for money or other consideration. [“Lewd act,” as used in this instruction, means any act which involves the touching of the genitals, buttocks, or female breast of one person by any part of the body of another person and is done with the intent to sexually arouse or gratify.”
CALJIC 1.20 — Wilfully defined. “The word “willfully” when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.”
California Penal Code 664 — Attempts; punishment. (“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted.”
Penal Code 266h PC — Pimping. “(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.”
Relevant Cases:
Ferguson v. City of Cathedral City, E051039, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO, 197 Cal. App. 4th 1161; 128 Cal. Rptr. 3d 514; 2011 Cal. App. LEXIS 978, June 30, 2011, Filed
Ferguson’s employment with the Cathedral City Police Department (the Department) began in 2001. In November 2006, Ferguson was arrested during a videotaped sting operation conducted in the City of Ontario after Ferguson agreed to pay an undercover police officer $40 for oral sex. On November 16, 2006, Ferguson exited the I-10 freeway at Holt Boulevard in Ontario and parked near a woman he had seen standing on the street. An undercover officer, Kathy Janzen (Janzen), was posing as a prostitute. Ferguson motioned to Janzen and she approached his car. Ferguson asked Janzen if she was a cop. Janzen said she was a “working girl” who charged $40 for a “blow job” and $80 for sex. Ferguson said, “I’ll take the $40 blow job.” Janzen directed Ferguson to meet her down the street. A uniformed police officer stopped Ferguson and arrested him for solicitation for prostitution.
Ultimately, on March 5, 2008, Ferguson pleaded no contest to Penal Code section 415, subdivision (2), a misdemeanor, for making loud and unreasonable noise. Ferguson was fined about $500 and sentenced to two years of summary probation.
If you have been arrested for the crime of Indecent Exposure, call experienced criminal defense lawyer Max Gorby at (323) 477-2819.
California Penal Code 314 — Lewd or obscene conduct: indecent exposure. “Every person who willfully and lewdly, either: [1]. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, [2]. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor. Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year. Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.”
Criminal. CALJIC 16.220 — Indecent exposure. “In order to prove this crime, each of the following elements must be proved: [1] A person intentionally exposed [his] [her] [person] [private parts] [in a public place] [, or] [in any place where there were present other persons to be offended or annoyed]; and [2] That person did so with the specific intent to direct public attention to [his] [her] genitals for the purpose of [his] [her] own sexual arousal or gratification, or that of another, or of sexually insulting or offending others.”
California Penal Code 290 PC — The Sex Offender Registration Act. (“(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: .subdivision 1 or 2 of Section 314 [California’s “indecent exposure” law].”
An individual failing to register as a sex offender under Penal Code 290 PC faces up to one year in county jail or up to three years in the state prison. Failing to register is a “continuing” offense, which means that each year you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.
CALCRIM 1161 — Lewd conduct. (“To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant willfully engaged in the touching of ((his/her) own/ [or] another person’s) genitals, buttocks, or female breast; [2] The defendant did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person; [3] At the time the defendant engaged in the conduct, (he/she) was in (a public place/ [or] a place open to the public [or to public view]); [4] At the time the defendant engaged in the conduct, someone else who might have been offended was present; AND [5] The defendant knew or reasonably should have known that another person who might have been offended by (his/her) conduct was present.”
RELEVANT CASES:
People v. Eckard, B224292, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE, 195 Cal. App. 4th 1241; 124 Cal. Rptr. 3d 811; 2011 Cal. App. LEXIS 648, May 25, 2011, Filed
About 6:10 a.m. on October 17, 2009, 15-year-old Easton and 16-year-old Kurtis went to Manhattan Beach to surf. As they descended the stairs to the beach, they noticed defendant staring at them from the beach. When the boys reached the beach, defendant climbed part way up the stairs and continued to watch them. Easton wanted to use the restroom, and Kurtis went with him. While Easton remained inside one of the stalls, Kurtis looked out the entrance to the restroom and saw defendant walking toward it. Kurtis was frightened and retreated into the other toilet stall. Defendant entered the restroom and paced slowly in front of the two stalls for five to 10 minutes. Kurtis thought defendant was breathing a bit heavily and at one point saw defendant’s legs and feet shaking. Twice, Easton saw defendant peeking inside the stall he was in through the gaps on the sides of the door. Kurtis phoned the police and described defendant and what was happening. While Kurtis was on the phone, defendant dropped to his knees in front of Easton’s stall and exposed his erect penis. From his seated position, Easton could see it in the space between the floor and the bottom of the stall door, which was about 18 inches tall. Photographs admitted in evidence as defense exhibits depicted the gaps below and to the sides of the stall door. Easton shouted at defendant to leave, and defendant did so. After the police arrived, the boys emerged from the toilet stalls and identified defendant to the police.
Defendant was convicted of a public offense, and properly subject to a jail term of up to six months and a fine of up to $1,000. He is also required to register as a sex offender for the rest of his life in California. (§ 290, subds. (b), (c).) The registration requirement is intended to enable law enforcement agencies to monitor his location and protect the public. Although the longer period of incarceration entailed in a felony sentence would further protect the public, we cannot rewrite the statute to accomplish such a goal. In defendant’s case, given his presentence credits and the passage of time, he has already served his 16-month felony sentence, although it was improperly imposed.
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