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Check Fraud Charges in San Diego County

Check Fraud Charges – Penal Code 476

You have been arrested and charged under P.C 476 for forging a check, the payor’s name on the check, or altering the amount of the check. Check fraud is a very serious offense, it is imperative that you become aware of the options that are available to you so that you are not convicted as a felon for the rest of your life.

What is check fraud charges under P.C. 476? 

It is the making or attempt to make, pass, utter, or publish a check with the intent to defraud any other person in order obtain cash, property or services.

Who may be charged under P.C. 476?

The person who made the fraudulent check, the person who passed the fraudulent check, and/or the person in possession of the fraudulent check.

What is a fraudulent check?

A check is fraudulent if the check is fake, altered, or forged with fraudulent intent.

How is check fraud charged?

In the state of California check fraud is a wobbler offense that can be charged as either a felony or a misdemeanor.  The prosecution will make the determination based on the person’s criminal history, the existence of previous theft crimes and the specific circumstances of the instant case. 

What must the prosecution prove to convict a person of check fraud charges?

The prosecution must prove that the person had knowledge that the check was fictitious or altered and had the intent to defraud another person when he or she made, passed, uttered, or published the check as a payment.

What are the punishments for a misdemeanor P.C. 476 conviction?

A person convicted of misdemeanor check fraud may face a maximum fine of $1,000 and up to one year in county jail.

What are the punishments for a felony P.C. 476 conviction?

A person convicted of felony check fraud may face a maximum fine of $10,000 and either sixteen months, or two or three years in state prison.

What defenses are available to P.C 476 charges?

A person charged with check fraud charges has three possible defenses, lack of intent, mistaken identity, or consent.

P.C. 476 is a specific intent crime, which means that the person must have the intent to commit a fraud in order to be convicted of fraud. If the person did not have the intent to commit a fraud, the person cannot be convicted for making, passing, or altering a fraudulent check.

Mistaken identity may be a defense for a person who did not know that the check was fictitious or altered  when he or she passed the check that a third party fraudulently made. The person cannot be convicted for passing a fraudulent check that he or she believed to be genuine.

Lastly, an alteration of a check made with the consent of the maker of the check is not fraudulent. If the defense can prove that the person altered the check with the maker’s permission then no fraud took place.

If you have any other questions or would like to know if any of these defenses can be applied to your specific check fraud charges, contact Monder Law Group at 619.405.0063. We are an experienced San Diego Criminal Law firm with experience handling fraud cases. Allow Criminal Defense Attorney Vik Monder to review the specifics of your case and find the best strategy for your defense.

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Resisting Arrest Charge in San Diego

What is P.C. 69?

The intentional use of threat or violence or actual use of force to delay, obstruct or resist an executive officer.

Who is an executive officer?

An executive officer is any public employee responsible for enforcing the law. It is important to note that P.C. 69 is not limited to peace officers but may include attorneys, prosecutors, and judges as well.

What constitutes a threat?

A threat for purposes of resisting arrest does not have to be imminent, it only need to be implied by a combination of written or oral statements or the person’s conduct.

What constitutes force?

Force for purposes of resisting arrest is the unlawful application of physical force against the executive officer or something attached to the officer’s person.

What must the prosecution prove to convict a person of resisting arrest charge?

The prosecution must prove that the person intentionally and unlawfully resisted a lawful arrest or obstructed an executive officer from performing a lawful duty by using threats, force or violence.

How is P.C. 69 charged?

The offense of resisting an executive officer is a wobbler in the state of California, which means that the prosecution may choose to prosecute it as a misdemeanor or a felony.

What are the punishments for a felony P.C. 69 conviction?

A person convicted of a felony P.C. 69 may face a maximum fine of $10,000 and either sixteen months, two or three years in state prison.

What are the punishments for a misdemeanor P.C. 69 conviction?

Resisting Arrest Charge in San Diego

A person convicted of a misdemeanor P.C. 69 may face a maximum fine of $10,000 and up to one year in county jail.

What defenses are available to P.C 69 charges?

A person charged with resisting an executive officer may argue self-defense if the defense can prove that the executive officer used excessive force and the person’s use of force was reasonable under the circumstances of the arrest.

Another possible defense that exists is that the executive officer’s conduct was unlawful. If the defense can prove that the executive officer was engaged in unlawful conduct then the executive officer is no longer protected under P.C. 69 and the person attempting to prevent such conduct or resist the executive officer would not be charged.

If you have any questions about a resisting arrest charge in San Diego contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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California Robbery Charges

California Penal Code 211 – ROBBERY

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will.  Robbery in California requires that the felonious taking be accomplished by means of force or fear.  

FELONIOUS TAKING:

The taking of another’s property with the intent to deprive the person of it permanently or for an extended period of time that would deprive the person of a major portion of the enjoyment of his or her personal property.

FORCE OR FEAR:

The use of force must be enough force to overcome the person’s resistance.  While the use of fear must place the person in fear of an unlawful injury to the person or property of the person robbed, or of any relative of the person’s member of the family.  For example, the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.  

FIRST DEGREE ROBBERY:

A person who voluntarily with two or more other persons, commits the robbery within an inhabited dwelling house, a vessel which is inhabited and designed for habitation, an inhabited floating home, a trailer coach which is inhabited, or the inhabited portion of any other building. 

PUNISHMENT FOR FIRST DEGREE ROBBERY:

First degree robbery is punishable by imprisonment in California state prison for three, six, or nine years.

SECOND DEGREE ROBBERY:

All other less serious robbery offenses under circumstances that do not meet the requirements for first degree robbery. 

PUNISHMENT FOR SECOND DEGREE ROBBERY:

Second degree robbery is punishable by imprisonment in California state prison for two, three, of five years.

DEFENSES TO ROBBERY:

No Use of Force or Fear: You took the person’s property without needing to use force or fear to accomplish the taking.

No Intentional Taking: You did not initially intend to take or permanently deprive the person of his or her property.

Mistaken Identity: You are innocent, wrongly mistaken for the robber but not responsible for the taking of another’s property.

False Accusation: You are wrongfully accused of the taking of another’s property.

Rightful Owner: You took the property but you have an honest belief that you are the rightful owner of the specific property that you took.  While your believe may be mistaken, so long as it is honest, it will be a defense to the robbery charges against you.

If you have questions about California Robbery Charges contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Crimes Against Elderly

What is elder abuse?

Neglect, physical, emotional, and/or financial abuse of a person who is sixty five years old or older.

Who can be charged for elder abuse?

Individuals who work at nursing homes, caregivers, individuals who provide services for elderly or dependent adults, and even the victim’s own family members.

How can crimes against elders be charged?

Crimes against elders or dependent adults can either be charged as a felony or a misdemeanor depending on the person’s criminal history and the circumstances of the offense.

How are crimes against elders punished?

Punishment for offenses against elders or dependent adults range from imprisonment in county jail not exceeding one year, a fine not to exceed six thousand dollars, both a fine and imprisonment, up to imprisonment in California state prison for two, three, or four years.

California Penal Code 368

It is a crime against elders and dependent adults for a person who KNOWS OR REASONABLY SHOULD KNOW that the victim is an elder or dependent adult, and who, under circumstances or conditions likely to produce great bodily harm or death,WILLFULLY CAUSES OR PERMITS any elder or dependent adult to suffer, or inflicts thereon UNJUSTIFIABLE PHYSICAL PAIN OR MENTAL SUFFERING.

It is a crime against elders and dependent adults for a person who KNOWS OR REASONABLY SHOULD KNOW that the victim is an elder or dependent adult, and who HAS THE CARE OR CUSTODY of any elder or dependent adult, WILLFULLY CAUSES OR PERMITS the elder or health of the elder or dependent adult to be injured, or WILLFULLY CAUSES OR PERMITS the elder or dependent adult to be placed in a situation in which his or her person or health is NEGLECTED OR ENDANGERED.

What if in the commission of the offense the victim suffered great bodily injury?

If the elder or dependent adult who suffered great bodily injury in the commission of the offense is under the age of 70 years old, then the defendant will receive an additional term of three years in state prison.

If the elder or dependent adult who suffered great bodily injury in the commission of the offense is 70 years old or older, then the defendant will receive an additional term of five years in state prison.

What if in the commission of the offense the defendant proximately causes the death of the victim?

If the elder or dependent adult who died in the commission of the offense was under the age of 70 years old, then the defendant will receive an additional term of five years in state prison.

If the elder or dependent adult who died in the commission of the offense was 70 years old or older, then the defendant will receive an additional term of seven years in state prison.

If you have any questions about crimes against elderly contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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California Conspiracy Charges

What is conspiracy?

An agreement between one or more people to commit a crime where one of the people involved in the conspiracy commits an overt act in furtherance of the unlawful agreement. 

What is an overt act?

The act done to help accomplish the agreed upon crime after the agreement to commit the crime has been made but before the crime is actually completed.

What is required of an overt act?

It can be committed by any of the people involved in the conspiracy, the act just needs to have occurred before the actual commission of the offense.

Does the overt act have to be criminal?

No the overt act does not necessarily have to be a criminal act, it can be a lawful overt act.

How can criminal conspiracies be charged?

Criminal conspiracy can either be charged as a wobbler offense or as a felony. 

What determines how criminal conspiracies are charged?

The determination depends on the underlying offense of the conspiracy. It is important to note that the conspiracy and the underlying crime are two separate offenses. Therefore, the commission of the underlying offense is not required for a conspiracy charge.

What does this mean for you?

A defendant can be found equally guilty for the ultimate offense as a conspirator, if there was an unlawful agreement and an overt act in furtherance of such agreement occurred.

What is the natural and probable consequences theory?

The natural and probable consequences theory allows the prosecution to impute liability for the secondary crime committed due to the forces set into motion in furtherance of the first or “target” offense. 

What defenses exist for criminal conspiracy?

The fact that no actual agreement ever took place or that no overt act occurred can both be possible defenses to criminal conspiracy. If there is no evidence of an original design or common plot between the defendant and the perpetrators of the underlying offense, then there can be no liability on the part of the defendant for the actions of third parties. 

Moreover, a defendant may escape liability if he or she withdrew from the conspiracy at any time before the commission of the offense or if the defendant operated under a mistake of the law or was falsely accused.

Who should you contact?

Contact Monder Law Group, our attorneys will look at the specifics of your case to see if a connection in fact exists between your actions and some action on the part of a third party.  There must be more than a fleeting relationship to the actions originally put into motion. Know your options by allowing us the opportunity to review your case and explain which is the best defense for you.

If you have any questions about California Conspiracy Charges contact San Diego Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Speedy Trial Rights

Misdemeanor arraignment departments occasionally set trial dates beyond the time limits of Penal Code section 1382.  Because it is the arraigning lawyers’ professional obligation to know what date is 30 and 45 days away, and to object to a trial setting beyond the applicable date unless a date farther out is chosen for the client’s benefit and with the client’s informed consent, this memo explains the workings of § 1382 in the misdemeanor arraignment context.

KNOW THE DATES!  When handling an arraignment calendar, figure out the 30th and 45th days before the calendar starts, AND WRITE THEM DOWN.  Counting the dates is easy.  Remember that CCP § 12 says that in counting days, you don’t count the first day, but you do count the last day.  So you can easily count days on a calendar.  For a 30 day period, you go straight down 4 weeks (28 days) and over 2.  45 days is 6 weeks (42 days) plus 3 days.  It is good practice for the arraigning attorney to prominently note the last day on the file so subsequent attorneys know what it is without having to count days again.

Examples:  Arraignment, in custody, on Wednesday, May 14, 2008.  Four Wednesdays later is Wednesday, 6/11/08; add 2 days for a last day of Friday, 6/13/08.

Same arraignment, out of custody:  Six Wednesdays  (42 days) after 5/14 is Wednesday, 6/25/08; add 3 days to make 45, and you are at Saturday, 6/14/08.  Because Saturday and Sunday are “holidays” for the purposes of counting days, the last day becomes Monday, 6/16/08.  (CCP § 12a.)

CUSTODY STATUS FOR § 1382 PURPOSES.  Courts, clerks, and lawyers sometimes get confused over whether a defendant is in custody or out of custody when the defendant is in custody at the start of the arraignment but is released OR when arraigned.  This should be a no-brainer – the defendant’s custody status is IN CUSTODY and the 30 day time period applies.  (See People v. Baca (1989) 211 Cal.App.3d 675; Cal. Crim. Law, Proc. & Pract. (CEB 2007) §19.18, P 515.)

WHAT TO DO WHEN TRIAL IS SET BEYOND § 1382 TIME.  Simple, just object.  Don’t make a big deal or try to get the court to change the date, just say “Defendant objects to the trial date.”  If asked why, say, “It’s beyond § 1382 time.”  You don’t want to get into a detailed discussion or argument with the arraignment judge.  In fact, you want  the date to stay unchanged so you can get the case dismissed.  Then you file a motion to dismiss under § 1382 to be heard as soon after time runs as possible.  Make sure the minutes include your objection.  Failure to object to a setting beyond time is deemed to be consent to the trial date and triggers the 10-day grace period beyond that.  (§ 1382, subd. (a)(3)(B).)

If you have any questions about your speedy trial rights contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

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Drunk In Public Charge

An essential element to a violation of 647(f) is that the person must “by reason of his being under the influence of intoxicating liquor” is unable to exercise care for his safety or that of others and by that same reason, interferes with the free use of any street, sidewalk or other public way.  It is not enough that Defendant had consumed alcohol earlier. It is the suspect’s condition at the time of the arrest that counts.  Witnesses will be asked if they had any reason to believe Defendant was intoxicated.

There is not enough probable cause for arrest as a public inebriate as a matter of law if the Defendant would not get out of the way because he was so drunk. An Officer would only be able to detain Defendant to investigate if he was under the influence and the Defendant was detained for that purpose. There is no crime for appearing in a public place exhibiting the objective symptoms of having ingested alcohol. Despite admissions from the Defendant, an officer will say he arrested and later booked Defendant for having allegedly violated Penal Code section 647(f) without ever determining Defendant was actually was under the influence of alcohol.

The prohibition against unreasonable arrest is safeguarded by the statute’s providing that the subject must be inebriated to a level whereby he cannot, by reason of the inebriation, care for his personal safety or that of others.  Powell v. Texas, (1968) 392 U.S. 514, 554 n. 5.(“I do not question the power of the State to remove a helplessly intoxicated person from a public street, although against his will, and to hold him until he has regained his powers. The person’s own safety and the public interest require this much. A statute such as the one challenged in this case is constitutional insofar as it authorizes  a police officer to arrest any seriously intoxicated person when he is encountered in a public place.”);White, J., concurring(emphasis added); People v. White, (1991) 227 Cal.App.3d 886. “The public intoxication statute, Penal Code section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publically intoxicated person is unable to exercise care for his or her own safety or the safety of others….The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk.” People v. Kellogg, (2004) 119 Cal.App.4th 593.“If Kellogg had merely been drunk in a public place in a manner that did not pose a safety hazard (i.e., if he was able to exercise care for his own and the public’s safety and was not blocking a public way), he could not have been adjudicated guilty under section 647(f).”   Ibid. (emphasis in original). Accordingly, “in such a condition that he is unable to exercise care for his own safety or the safety of others” means being in a state of extreme drunkenness which deprives a person of his faculties, the ability to control one’s actions, to comprehend what one is doing or where one is.  It means a person must not only be intoxicated, but to a high degree sufficiently severe and incapacitating as to cause a person to be dangerous to himself or to third persons.  “[T]he arrest under Penal Code section 647, subdivision (f) was improper because the ‘described symptoms [slow speech, eyelids drooped, head hung low] indicated only that the defendant was under the influence of an opiate, and not that  he was incapacitated as a result.'” People v. Lively, (1992) 10 Cal.App.4th 1364, 1371, quoting People v. Rich (1977) 72 Cal.App.3d 115, 122. Lively used the term ‘quite impaired’ to describe the level of intoxication sufficient for probable cause. Id., p. 1367. A lawful arrest under P.C. §647(f) requires more than being under the influence of alcohol; intoxication must result in “incapacitation.”  People v. Rich, 72 Cal.App.3d 115, 122; 139 Cal.Rptr. 819, 824 (1977).  The evidence in Rich was that defendant’s objective symptoms were  consistent with being under the influence, but that was insufficient probable cause for the disorderly conduct PC§647(f) arrest.

People v. Olson  (1971) 18 Cal.App. 3d 592, 96 Cal.Rptr. 13256 underscored the incapacitation element of the drunk in public statute. The defendant was found by police inside a stranger’s house (Voisan). Olson had come asking for someone who did not live there, swayed, spoke with slurred speech, staggered away slowly, and eventually fell asleep inside Voisan’s home. The officers found her non-communicative “passed out or asleep”, she arose when voices were raised and used a table to stand up; there was no scent of alcohol and pupils were slightly larger than normal; she needed assistance leaving the house and staggered even as steadied by the officers. Officers administered the heel to toe FST which was unsuccessful and then arrested the defendant for violating 647(f). The court found these objective symptoms supported the officer’s opinion (which was shared by Voison) that Olson was unable to care for her safety. It is for this same reason Krafft’s citation to People v. Blatt, 23 Cal.App.3d 148 (1972) and People v. Cruz 44 Cal.App.4th, 636, 674 (2008) fails. The defendant in Blatt was found in her father’s store. She admitted to the arresting officer she was “stoned,” her words were abusive, and incoherent. Her speech was thick, and she had difficulty enunciating. Her eyes did not focus, and her head swayed back and forth. Id., p. 151. In Cruz, there was evidence the defendant was “pretty drunk” and slurred his speech. Id., p. 674. An Officer offers no such facts to support probable cause for arrest of Defendant for allegedly being in violation of Penal Code section 647(f).  The burden of establishing probable cause in a warrantless arrest rests with the arresting officer. A warrantless arrest is presumed illegal in California (Ev. Code § 664). Dubner v. City and County of San Francisco (2001) 266 F.3d 959, 965; Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978). The Officer has not met this burden nor has he rebutted the presumption of illegality. Thus probable cause for arrest on 647(f) grounds can only properly be decided by the trial.

If you have questions about fighting a drunk in public charge contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit Criminal Defense Attorney