What is the Criminal Process?
The following is a list of criminal offenses. Call us for a free consultation.
Offenses:
Criminal codes penalize a variety of activities. Generally, an offense is any violation of the California Penal Code. The Penal Code divides offenses into three major categories: felonies, misdemeanors, and infractions. Felonies are crimes for which a person may be sentenced to imprisonment in the state prison or to death. The most violent crimes, such as murder and rape, as well as so-called white collar crimes, generally are felonies under the California Penal Code. Misdemeanors are lesser crimes for which a person may be sentenced to imprisonment in a jail. Under the law, many crimes are misdemeanors on the first offense, but become felonies on the second offense. Infractions are not punished by imprisonment at all. Children under the age of 14 are not capable of committing crimes according to California law, unless the prosecutor presents clear proof that the child had knowledge of the wrongfulness of his or her action.
Homicide:
Homicide is the unlawful killing of another human being. There are two types of homicide: murder and manslaughter. Most forms of homicide are felonies.
Murder:
Murder is the unlawful killing of another with malice (evil or hatred) and with the specific intention to kill. Murder is divided into subcategories by degree of seriousness. Murder of the first degree is killing someone with malice and with the deliberate and premeditated intent to kill. The willful, deliberate, and premeditated killing usually is characterized by torture, lying in wait, or using poison or an explosive device specifically to kill a person. If a person kills while committing arson, burglary, lewd acts against children, rape, or robbery, the court will decide the person had malice and premeditation, and will rule the person guilty of first degree murder. Murder of the second degree is similar to murder of the first degree, except the element of premeditation does not have to be proven. If a person kills while committing a felony that is inherently dangerous to human life other than arson, burglary, etc. the person will be found guilty of second degree murder. For example, if the defendant furnishes heroin to someone who uses it and dies of an overdose, the defendant probably will be charged with murder in the second degree. Under the law it is assumed that if the defendant had the specific intention to furnish the heroin, he or she had malice enough to be charged with murder.
Manslaughter:
Manslaughter is defined as killing a person without having malice. Like murder, there are different degrees of seriousness of manslaughter. Voluntary manslaughter means the person had an intention to kill, and was provoked to commit the crime during an argument or the heat of passion. Involuntary manslaughter does not include the element of an intention to kill. Vehicular homicide is defined as manslaughter committed by driving a vehicle. For example, a person who commits a grossly negligent act while driving a car under the influence of alcohol, which results in someone being killed, would be charged with vehicular homicide.
Assault and Battery :
Under California law, assault and battery are separate crimes, although often they are charged together. Assault is defined as an unlawful attempt to violently injure another person. Battery means unlawfully and willfully using force or violence against another person. Other laws make both assault and battery more serious crimes if the offender uses a firearm or other deadly weapon, commits the crime with the intent to commit mayhem or rape, or if the assault or battery is against a government officer or an elderly person. Under California law, transmission of HIV may constitute an aggravated battery.
Rape:
Criminal sexual assault also known as rape is a felony that carries with it severe penalties. Rape is sexual intercourse against a person under one of the following circumstances:
1) The victim is unable to give legal consent due to a mental disorder, developmental disability, or physical disability
2) The victim is unable to resist because the person is unconscious, intoxicated, or anesthetized, and the assailant knew or should have known of the victim's condition
3) The action is against the person's will by using force, violence, menace, duress, or fear of immediate injury, or by a threat to retaliate in the future
4) The defendant is a public official who acts against the victim's will by a threat to arrest or deport the victim
California law specifically makes it unlawful for a man to rape his wife.
Aggravated criminal sexual assault is criminal sexual assault against a child under the age of 14, and who is ten or more years younger than the defendant. Acting in concert with others is another form of aggravated rape.
Homicide is the unlawful killing of another human being. There are two types of homicide: murder and manslaughter. Most forms of homicide are felonies.
Sexual Battery:
Sexual Battery is a crime similar to rape, and is defined as touching the intimate part of another person who is restrained and without the person's consent. For example, sexually touching a person who is institutionalized and seriously disabled is sexual battery.
Sex Crimes and Child Molestation:
California laws are very tough when dealing with virtually all types of sex crimes. The political climate and general public sentiment regarding sex crimes make it even more critical that your attorney is familiar with all aspects of defending these types of matters. Poor legal representation can result in lengthy prison terms, life-long registration as a sex offender and loss of family and rights to see your own children. Our office has had to step into many situations in which the prior attorney’s lack of experience and know how in the filed has severely compromised the client’s rights. If you or a loved one is facing a Child Molestation Charge in either Orange County, San Bernardino County, Riverside County or Los Angeles County be sure to contact our offices right away. If retained early on retained at an early stage, we are often able to avoid the embarrassment of our client being arrested at their home or job or have charges against them filed altogether. A tactic used by many police departments is the “pretext phone call” setup. If Schwarz & Associates is hired early on we can assist our clients in defending their rights against these false allegations and entrapment techniques.
The following is a brief overview of possible sex crimes one can be charged with in California:
288 PC - lewd act with child (child molestation under 14 years old)
288a(b) PC - child molestation 14 years or older
288.5 – continuous lewd act with a child
261.2 PC - forcible rape
261.5 PC - statutory rape (consensual intercourse under 18 years old)
290 PC - obligation to register as a sex offender with the local police
311 PC - possession of obscene matter
314 PC - indecent exposure
647(a) PC - lewd act in public place
647(b) PC - solicitation of prostitution
243.4 PC - sexual battery
Our office emphasizes on defending Sex Crimes cases, if you need an Orange County Sex Crime Lawyer, an San Bernardino County Sex Crime Lawyer or a Riverside County Sex Crime Lawyer you should contact our office today. Our aggressive and thorough representation has made us one of the leading Southern California criminal defense firms dealing with sex-related criminal charges. Having a team of attorneys, law clerks and investigators with the experience and knowledge to meet the challenge presented by these accusations Schwarz & Associates is the right firm if you have been unjustly accused of a Sex Crime. Please refer to Our Victories to review a few of the cases handled by our office and the results accomplished. Homicide is the unlawful killing of another human being. There are two types of homicide: murder and manslaughter. Most forms of homicide are felonies.
Kidnapping:
Kidnapping is forcibly, or by using fear, taking or holding or detaining a person, and carrying the person from one place to another. Kidnapping by persuading, enticing, or seducing a child under the age of 14 with misrepresentations or false promises also constitutes criminal kidnapping under California law. The California kidnapping law also specifically prohibits kidnapping of any person adult or child by making misrepresentations or false promises, if the intent is to sell the person into slavery or involuntary servitude or to use or employ the person for one's own purposes. Kidnapping for ransom or extortion, and kidnapping during a carjacking, are more severe crimes that carry additional penalties. All forms of kidnapping are felonies.
Stalking:
Stalking is the crime of maliciously, willfully, and repeatedly following or harassing a person, and making a believable threat in order to make the person afraid for his or her safety or the safety or his or her family. The harassment may be any behavior that annoys, torments, terrorizes, or alarms the victim, but it must be specifically directed at the victim to serve no other legitimate purpose except to cause fear or bother him or her. Depending on the circumstances, stalking may be punished as a misdemeanor or a felony. If there is a protective order in effect against the stalker, or if the accused has been convicted of stalking previously, the stalking is a felony.
Drug Laws :
Cases involving drugs give rise to many issues, and many possible defenses and results. Charges involving drugs range from being under the influence of a substance or possession for personal use of a substance, to possession for purposes of sale or narcotics trafficking. Also the nature of the drug involved can affect the punishment sought by the district attorneys office. Our office has handled many cases involving individuals charged with possession of an illegal substance with the intent to sale or transport. Due to the fact that these charges are highly evidence sensitive and the manner in which the evidence has been gathered and its credibility can affect the outcome so drastically it is always better to consult an attorney about the specifics of the case rather than rely on the general description of the laws. Many times a well drafted and argued Motion to Suppers can have the entire case dismissed before trial. Following a general overview of some of the drug laws in California.
Marijuana:
Marijuana drug possession carries less severe penalties provided there was no violence during the crime. Sentences for marijuana possession also depend on the amount of marijuana confiscated. Large amounts of marijuana may have the same consequences as cocaine or heroine possession. Of course if the charge is possession with intent to sale or transport then the defendant should face much heavier penalties.
Proposition 36
Proposition 36, which took effect on July 1, 2001 offers substance-abuse treatment in lieu of jail for certain drug possession convictions. People convicted of a non-violent Drug possession offense may be eligible for this program provided:
they did not use a firearm during the crime,
they were not convicted of another crime in the same case, and
they did not have prior convictions within the last 5 years.
Under "Prop 36", drug offenders will receive probation with the stipulation that they participate in a substance abuse program for a period of one year and agree to follow up care.
Our office has represented hundreds of drug possession and sale cases. Our experience has established that an aggressive well thought out and investigated defense can be the difference between our client’s liberty or a long prison sentence. Alternate sentencing options, such as home detention, halfway house and or drug classes are also always a possibility for drug possession cases See our Victories. Contact Schwarz & Associates for a free evaluation of your or a loved one’s case.
DUI:
Schwarz & Associates has handled DUI cases in virtually all southern California courts, if you need a DUI Lawyer, call today. If you have been arrested for DUI, you will have to deal with both the criminal justice system and the DMV. In fact, you must contact a lawyer immediately so that he/she can request an Admin Per Se hearing from the DMV. This must be done within ten days of your arrest in order to protect your right to a hearing so that your driving privilege is not suspended for four months.
Unlike the criminal process at Court, the DMV is a civil matter, run by their Office of Driver Safety.
The DMV hearing officer acts as both judge and prosecutor in this procedure. They are only interested in three issues:
1) Did the arresting officer have reasonable cause to believe that you were driving under the influence;
2) Was the arrest lawful, and;
3) Was your blood alcohol an .08 or higher at the time of driving.
Technical issues are the deciding factors in the DMV hearings. Our attorneys have conducted many DMV hearing s and are thus well versed in the technicalities, which could save your license. The charge of driving under the influence actually consist of two charges: 23152(a)V.C. "driving under the influence of drugs or alcohol (or both)" and, 23152(b) V.C. "driving with a blood alcohol level of .08 or higher." The punishment is the same whether you plead to either offense. Those convicted or those who plead guilty to these charges will be required to maintain proof of insurance of three years while they are on probation. Also a conviction or a guilty plea can will be considered a “prior” and if that individual is convicted of another DUI offense he or she would face a mandatory jail sentence plus suspension of his/her driver’s license for one year. Before pleading guilty to a DUI charge contact our office and setup a free consultation with one of our attorneys.
DUI with Enhancements :
One who is found guilty of or pleads guilty to a DUI charge with either a minor under fourteen (14) in an accident with injuries to a third party, would face additional punishment. If faced with a DUI with an enhancement please contact attorney David Schwarz so that he can explain your rights to you in person.
Theft Crimes :
The legal definition of theft is the felonious stealing, taking, carrying, leading, or driving away of the personal property of another, or fraudulently appropriating property that has been entrusted by the other. This definition is much broader than what most people think of as theft. It includes writing bad checks, embezzlement, keeping found property without making a reasonable attempt to find its rightful owner, misusing trade secrets, unlawfully tapping into cable television services, obtaining telephone or telegraph services by fraud, or obtaining the labor or services of another person by fraud.
Burglary :
Burglary is entering into a building, dwelling, or vehicle with the intent to commit theft or a felony there. Not only is it burglary to enter a house unlawfully with the intent to steal money or property, but it is also burglary to enter with the intent to commit a felony such as arson or murder.
Robbery :
Robbery is feloniously taking of personal property from another person or in the person's immediate presence, by using force or causing fear. If the crime of robbery is committed with a weapon additional penalites can be imposed as well.
White Collar Crime :
Although there is no fixed definition of white collar crime, a number of nonviolent crimes frequently are grouped together as white collar crimes. The term "white collar crime" generally is used to describe crimes that have cheating or dishonesty as their common basis. These crimes typically are committed by professionals or entrepreneurs under cover of legitimate business activity. Such crimes may be difficult to prosecute because of their complexity. Often they carry lesser penalties than other crimes because they are not associated with violence. However, defendants convicted of white collar crimes may incur enormous fines, be ordered to pay restitution, or spend time in jail. Today, there is a trend toward stricter punishment for white collar crimes, as people recognize the financial damage white collar criminals inflict on society.
Bribery :
Federal law and California law both prohibit bribery. The purpose of most bribery statutes is to prevent people from seeking preferential treatment from public officials and to prevent public officers from using their offices for personal gain. Specifically, if a government official is offered or seeks anything of value for himself or herself in exchange for performing an official act, a fraudulent action, or any action in violation of his or her official duty, the elements of bribery may be met.
Computer Crime:
Computer crime is an area of the law in which the government appears to be playing catch-up with the growth in new technologies. Some variations of computer crime are so new that there are no specific laws to address them, and general laws in existence do not seem adequate to proscribe the particular illicit activities. Generally, conduct specifically outlawed by federal statute includes an intentional or knowing access of a computer to obtain confidential national security information, financial information of a financial institution or of a credit card issuer, information of a federal department or agency, or to commit fraud. The California Penal Code also includes provisions covering computer crime. It is illegal to knowingly introduce a contaminant into a computer, computer system, or computer network. In addition, it is against state law to knowingly and without permission access a computer and damage, delete, destroy, or use any data, computer, computer system or computer network. It is unlawful to use computers as part of a scheme to defraud or to wrongfully control or obtain money, property, or data. A violation of this law subjects the offender to a range of sanctions depending on the specific violation, the value of computer services used, the amount of the injury, and whether it is the defendant's first violation of the statute. The maximum punishment is a fine not exceeding $10,000, imprisonment in the state prison for three years, or both.
Embezzlement:
To embezzle means to take another's money and property through abuse of an official job or position of trust. Embezzlement can take many forms. An accountant might use sophisticated methods to falsify records and skim profits. A bank teller might walk home with an extra 20 dollars from his or her drawer. Both of these actions constitute embezzlement.
False Statements:
The crime of making false statements is not specific to white collar criminals, but this crime is broad enough to encompass activities that might not be unlawful if not for associated false statements. To convict someone of false statements requires proof of a statement made willfully and knowingly that contains a false material fact or conceals a material fact.
Fraud Fraud is intentionally lying in order to induce someone to rely on the lie and part with something of value. Like embezzlement, fraud can be either complex or simple. The federal government has three general anti-fraud statutes for mail fraud, bank fraud, and wire fraud. Mail fraud has two elements: (1) a scheme devised or intending to defraud or for obtaining property or money by fraudulent means, and (2) using the mails in furtherance of that fraudulent scheme. The "scheme to defraud" element of mail fraud is deliberately broad. It encompasses a wide variety of criminal activity, including credit card fraud, securities fraud, medical drug fraud, and frauds based on political malfeasance. Because the mail fraud statute uses such broad language and because it is relatively easy to prove, mail fraud is one of the most common charges brought by federal prosecutors. Charges of mail fraud frequently are made even in cases in which more specific crimes have been charged.
Perjury:
Federal perjury laws penalize anyone who willfully or knowingly makes false statements under oath. The sworn statements may be written or oral and need not be made in court; a person may perjure himself or herself in deposition or written testimony. A related law against subornation of perjury makes it illegal for anyone to procure another person to commit perjury.
Home | About Us | Practice Areas | Criminal Defense
| Personal Injury |Serious Injury| Family Law |
Bankruptcy | Civil & Business Litigation
Our Team | Our Victories | Contact Us | Where Do We Practice | Useful Links |
