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Field Sobriety Test

As part of the alcohol influence report form, most police officers will subject a drunk driving suspect to field sobriety tests at the station. In Muniz, the court reaffirmed that requiring a driver to perform field sobriety tests does not compel him or her to provide testimonial evidence. Therefore, there is no right to refuse to perform the test as well as no right to consult with an attorney beforehand. Muniz at 602-03. The Muniz rationale would likely allow the police to instruct an arrested defendant to perform field sobriety tests without having to advise the defendant of Miranda rights.

Note: Although there is no constitutional right to refuse to perform the field sobriety tests, unless there is a penalty, statutory or common law, for refusing to submit to a field sobriety test, there should be no adverse inference drawn from a defendant’s refusal to participate.

In a number of jurisdictions, even if the defendant requests to speak with an attorney, the police officer may still instruct the defendant to perform a field sobriety test prior to permitting the defendant to speak with counsel. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (court upheld police testimony about the defendant’s performance on field sobriety tests even where defendant had asked for counsel prior to submitting to tests, reasoning that “field sobriety tests do not elicit testimonial or communicative evidence and therefore do not trigger the protection afforded by the Fifth Amendment.”).

Even if the performance of the field sobriety test may not be incriminating, the suspect who performs the physical test in response to police instructions will often make statements that are incriminating. In Muniz, once the arresting officer gave the defendant instructions about the field sobriety tests, Muniz made incriminating statements, some of which suggested the reasons why he could not properly perform the test. The Court held that these statements, made while Muniz was under arrest but before he was advised of his Miranda rights, were admissible because even though they were testimonial, Muniz was not responding to custodial “interrogation.” Muniz at 602-05. The Court reasoned that the “instructions were not likely to be perceived as calling for any verbal response [because they] were not ‘words or actions’ constituting custodial interrogation.”  Id. at 603.

The Court did not decide the “custodial interrogation” status of certain other common practices (occurring in Muniz), such as requesting that the arrestee count aloud from one to nine while performing the “walk and turn” test, or count aloud from one to thirty while balancing during the “one leg stand” test. Therefore, these issues are still open from a constitutional perspective.

Although the police could testify concerning statements made by Muniz not in response to “interrogation,” questions about Muniz’s drinking during the field sobriety tests would have amounted to interrogation, and the answers to those questions would have been suppressed as a violation of Miranda. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (defendant told police he would not say or do anything without his counsel present, but agreed to submit to a breath test and field sobriety tests after being informed that his license would be suspended if he did not. During testing defendant was asked certain questions regarding his alleged intoxication; to some of those questions he gave incriminating responses, and the court held that the oral statements made by the defendant were elicited in violation of Miranda rights and were properly suppressed); see also State v. Fields, 294 N.W.2d 404 (N.D. 1980); State v. Darnell, 8 Wn. App. 627, 508 P.2d 613, cert. denied 414 U.S. 1112 (1973).

If the defendant has been arrested, the police may require the defendant to perform standard field sobriety tests without giving Miranda warnings, but only those tests that measure physical coordination, reflexes, dexterity and balance. The police may also testify how the defendant performed on the field sobriety tests and what, if anything, the defendant said while performing the tests or refusing to perform them. The police may not, however, attempt to elicit any incriminating response from the suspect. Muniz at 602-05.

Certain Kinds of Field Sobriety Tests Require Miranda Warnings

Some field sobriety tests do require Miranda warnings-those that not only require the defendant to perform physical acts, but also require the defendant to answer certain questions. For example, in Muniz, in addition to the physical field sobriety tests, the police asked Muniz to perform verbal tests, including a request that he give the date of his sixth birthday. He did not know the proper date, and his answer amounted to an incriminating response because it demonstrated a confused mental state. The question was incriminating not only because of the way he answered, but also because of what he said. Id. at 599. See also Allred v. State, 622 So.2d 984 (Fla. 1993). The police also asked this question because they were looking for an incriminating response, hoping that Muniz answer incorrectly and show that he was intoxicated. The court correctly concluded that the question was not a “routine booking question” designed to obtain mere data for case processing, but rather was custodial interrogation intended to produce a testimonial response. Muniz, at 592-600. Since Miranda warnings were not given, and there was no knowing and intelligent waiver of the right, the response was not admissible at trial. Id.

The Court did not have to rule on whether the police testimony concerning counting aloud while performing a physical dexterity test was admissible because Muniz had counted accurately during the “one leg stand” test and he was not required to count during the “walk and turn” test. Therefore, the prosecution did not produce any incriminating evidence.

A number of state courts have held that verbal field sobriety tests, including counting and alphabet tests, are testimonial in nature and implicate the Fifth Amendment privilege against self-incrimination. See Allred v. State, 622 So.2d 984 (Fla. 1993); State v. Fish, 321 Ore. 48, 893 P.2d 1023 (1995); Commonwealth v. McGrail, 419 Mass. 774, 647 N.E.2d 712 (1995). But see State v. Wright, 11 6 N.M. 832, 867 P.2d 1214 (1993).

The cases holding that verbal field sobriety tests implicate Miranda and the Fifth Amendment privilege against self-incrimination are the better reasoned ones. Thus, if the police have failed to give Miranda warnings prior to requesting that defendant perform verbal field sobriety tests, the defense should aggressively move to suppress those responses.

Probable Cause

Before anyone can be arrested and charged with the crime of driving under the influence, the officer so arresting or so charging must have had probable cause to stop the vehicle the individual was driving in, require the individual to perform field sobriety tests, administer a chemical test to the individual or search the individual’s person or vehicle. The United States Constitution’s Fourth Amendment, which is applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Therefore, the police must have probab le cause to stop and question the driver of a car for suspicion of drunk driving before such questioning, and searches incident thereto, will be upheld. Again, as with many of the other motions, a motion based on lack of probable cause can either be brought as a motion to dismiss, (when the evidence obtained, if precluded from production into evidence, will warrant a dismissal of the charges), or, in the alternative as a motion to suppress, (when the evidence obtained, if precluded at trial, will merely prohibit the state from presenting part of its case). The analysis of the cases presented in this section applies either to motions to suppress or to dismiss.

If you have questions about the field sobriety test in San Diego contact Attorney Vik Monder at 619.405.0063 or visit San Diego’s Best DUI Attorney

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Answer Police Questions

The primary area of challenge to the admissibility of statements of the defendant is to those statements made in response to initial questioning by the police just after the defendant has been stopped. Generally, the first question asked by the cop when he smells alcohol on the defendant’s breath is, “Have you been drinking?” The answer is often a significant factor in the prosecution’s case.

Miranda warnings are rarely given before the question is asked. Admissibility then turns on whether or not they should have been given, and that issue turns on whether or not the defendant could have objectively believed he was in custody. Thus the custodial status of the defendant, and the necessary analysis of when probable cause arose to arrest the defendant, is a fact which must be determined preliminary to any decision about suppressing the evidence. Such an analysis falls squarely into the situation dealt with by Evid. C. §402, which allows the determination of a fact which is preliminary to a decision to suppress evidence (People v. Lopez (1985) 163 CA3d 602, 209 CR 575).

Berkemer v. McCarty (1984) 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317, was a drunk driving case from Ohio. The U.S. Supreme Court held that anyone actually arrested for any crime, including a misdemeanor, is in custody; but, when a person is merely detained for the purpose of issuing a traffic citation for an infraction, they are not in custody. Pennsylvania v. Bruder (1988) 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172, was in agreement.

In Green v. Superior Court (1985) 40 C3d 126, 219 CR 186, the California Supreme Court followed Berkemer and stated that, in determining whether or not a defendant is “in custody” for purposes of the Miranda warning requirement, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest…. The test, of course, is an objective one— how a reasonable man in the suspect’s position would have understood his situation…. Would such a person feel that he has been subjected to restraints comparable to those associated with a formal arrest? If so, he was ‘in custody’ and entitled to Miranda warnings before being interrogated.”

Four years after Green, in People v. Boyer (1989) 48 C3d 247, 256 CR 96, the California Supreme Court stated:

In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.

Later, the California Supreme Court tried to change this objective test into one incorporating into factor number (2) (whether the investigation has focused on the subject), the undisclosed intention of the cop to arrest. But they were resoundingly chastised by the U.S. Supreme Court in Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293, which reaffirmed that “custody” is determined by objective circumstances known to the defendant, not the undisclosed intentions of the cops.

So the rule is now clear: The statements of the defendant are inadmissible without Miranda warnings if the defendant is in “custody.” And that is determined by an objective test, based upon an application of the factors mentioned above to the information known to the defendant.

You may be successful in having the defendant’s statements suppressed in a drunk driving case where the defendant was stopped while driving under suspension. Such a person would quickly have a subjective belief, which shortly becomes objectively reasonable, that he is under arrest.

Numerous California opinions have applied Berkemer. [See People v. Ceccone (1968) 260 CA2d 886, 67 CR 499; Ramona R. v. Superior Court (1985) 37 C3d 802, 210 CR 204; and People v. Lopez (1985) 163 CA3d 602, 209 CR 575.] But in People v. Bellomo (1992) 10 CA4th 195, 10 CR2d 782, custody was never really an issue. The court held that Miranda advice was not needed because the defendant was sitting on the curb near his wrecked auto, had not yet been arrested, and the questions were not accusatory.

In People v. Forster (1994) 29 CA4th 1746, 35 CR2d 705, the defendant’s statements made without Miranda advice followed a one-hour detention in the San Ysidro customs office, but were not suppressible. The opinion held that the situation was not reasonably perceivable by the defendant as “in custody” for Miranda  purposes. This despite the fact that the U.S. Customs Inspector who greeted the defendant upon entry to the U.S. at the No. 5 Inspection Lane had, “asked Forster to step out of his vehicle and accompanied him to the customs security office, where [he] subjected Forster to a routine pat-down search and directed him to sit on a bench.” I guess he was actually free to leave, since the customs agent had only asked him to wait around. Remember that next time you cross the border.

If you have questions about whether to answer police questions contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Detained Arrested Difference

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu (2002) 534 U.S. 266, 273, citing United States v. Cortez (1981) 449 U.S. 411, 417; Terry v. Ohio (1968) 392 U.S. 1, 9.

In People v. Soun (1995) 34 CA4th 1499, 40 CR2d 822, the court clearly spelled out constitutional standards for permissible detentions and arrests:

Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a state “seizure” of the individual within the meaning of the Fourth Amendment. Such a seizure is normally characterized as either a “detention” or an “arrest.”

The distinction can be significant, inasmuch as the constitutional standard for a permissible detention “is of lesser degree than that applicable to an arrest”

A detention “‘may be undertaken by the police’ if there is an articulable suspicion that a person has committed or is about to commit a crime”, while probable cause for arrest is said to exist only “when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” Thus in assessing the constitutional propriety of a seizure of the person it is essential initially to determine whether the seizure was a detention, or was an arrest, or was both a detention and, subsequently, an arrest.

If you have questions about detained arrested difference, contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Erasing Arrest Record California

Expungement is a legal process through which an arrest or conviction may be erased from a person’s criminal record. Below you will find links to in-depth information on expungement, and state-specific resources on expungement and criminal records.

• Expungement Basics – Introductory information on expungement and its legal effects.
• Eligibility for Expungement – An arrest or conviction usually must meet certain standards in order to qualify for expungement.
• The Expungement Process – A number of steps must be taken before an expungement is granted.

Expungement Basics

Expungement (also called “expunction”) is a court-ordered process in which the legal record of an arrest or a criminal conviction is “sealed,” or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as “setting aside a criminal conviction.” The availability of expungement, and the procedure for getting an arrest or conviction expunged, will vary according to the state or county in which the arrest or conviction occurred.

Legal Effect of an Expungement

An expungement ordinarily means that an arrest or conviction is “sealed,” or erased from a person’s criminal record for most purposes. After the expungement process is complete, an arrest or a criminal conviction ordinarily does not need to be disclosed by the person who was arrested or convicted. For example, when filling out an application for a job or apartment, an applicant whose arrest or conviction has been expunged does not need to disclose that arrest or conviction.

In most cases, no record of an expunged arrest or conviction will appear if a potential employer, educational institution, or other company conducts a public records inspection or background search of an individual’s criminal record.

An expunged arrest or conviction is not necessarily completely erased, in the literal sense of the word. An expungement will ordinarily be an accessible part of a person’s criminal record, viewable by certain government agencies, including law enforcement and the criminal courts. This limited accessibility is sometimes referred to as a criminal record being “under seal.” In some legal proceedings, such as during sentencing for any crimes committed after an expungement, or in immigration / deportation proceedings, an expunged conviction that is “under seal” may still be considered as proof of a prior conviction.

Expungement Eligibility

When expungement of an arrest or conviction is an option in a state or county, in most instances a person’s criminal record must meet certain standards in order to qualify for the process.

Whether or not a person is eligible for expungement will usually depend on a number of factors, including:

• The amount of time that has passed since the arrest or conviction
• The severity and nature of the event for which expungement is sought (i.e. a conviction for a sex offense may lead to a denial of expungement)
• Events in the applicant’s criminal record (including arrests or convictions in all jurisdictions, not just the offender’s state/county)
• The severity and nature of other events in the applicant’s criminal record

Depending on the state and/or county, special eligibility rules might exist for expungement of arrests or convictions that occurred while the offender was a juvenile, and arrests or convictions for sex offenses.

The Expungement Process

Where available to persons who have been arrested or convicted, expungement does not happen automatically, and is never guaranteed. A person seeking to have an arrest or criminal conviction expunged from their record must usually fill out an application or petition, and submit the paperwork to the proper criminal court for a judge’s review and decision. In most jurisdictions, a fee must be paid in conjunction with the filing of the application.

The expungement process can be complicated. For example, some jurisdictions require an applicant to deliver (or “serve”) papers on district attorneys, while others require the applicant to prepare the legal document (or “Order of Expungement”) which will be signed by the judge. In some cases, a court hearing is required, after which a judge will decide whether to grant the expungement.

If you have any questions about erasing arrest record California contact San Diego Criminal Attorney today at 619.405.0063 or visit San Diego Criminal Attorney

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Juvenile Charges in San Diego

When minors are eligible for juvenile court, and what to expect in juvenile court.

“Juvenile justice” is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called “juveniles” or “minors”) are accused of committing crimes.

Eligibility for Juvenile Court

There is no set age by which a child is accountable in the juvenile court system. In general, a child under seven years of age is considered too young, while a child 14 or older is considered accountable for their crimes, either in juvenile or adult court. Children between the ages of seven and 14 occupy a middle ground, and prosecutors must demonstrate that the accused child is capable of forming the guilty mind required to be accountable in the juvenile court system.

Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about “getting tough on crime,” the conflicting opinions on how to deal with minors accused of crimes are greater still.

Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:

• detain and warn the minor against further violations, and then let the minor go free
• detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
• place the minor in custody and refer the case to a juvenile court.

Whether Case Goes to Juvenile Court

If the police refer a case to the juvenile court, a prosecutor or a juvenile court “intake” officer (often a probation officer) must then decide whether to:

• dismiss the matter
• handle the matter informally, or
• “petition” the matter by filing formal charges.

In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. (For more information, see Avoiding Formal Charges, below.)

When a Minor Commits a Crime

Informal Charges

A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may also initiate proceedings to remove the minor from the custody of his or her parents or guardians.

Formal Charges

If the intake officer decides to proceed formally, the officer files a petition and the case is placed on the juvenile court’s calendar. At that point juvenile cases typically flow through the juvenile justice system in this manner:

• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile’s personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a “fitness hearing.”
• At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
• If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an “adjudication”).
• If, after trial, the juvenile court judge “sustains the petition” (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
• Post-disposition hearings may occur. For example, a judge’s disposition order may require a minor to appear in court periodically so that the judge can monitor the minor’s behavior.

Juvenile Court Procedure

The procedure and organization of the juvenile court system is different from the adult system. After committing an offense, juveniles are detained rather than arrested. Next, a petition is drawn up which outlines the jurisdiction authority of the juvenile court over the offense and detained individuals, gives notice for the reason for the court appearance, serves as notice to the minor’s family, and also is the official charging document.

Once in court, the juvenile case is adjudicated, and a disposition is handed down. Records from juvenile courts are sealed documents, unlike adult records which are accessible by anyone under the Freedom of Information Act. Like diversion, this measure is designed to protect the juvenile so that one mistake does not follow the juvenile for life. Juvenile records may also be expunged upon the juvenile’s eighteenth birthday provided the juvenile has met certain conditions, such as good behavior. Juvenile court procedure is also far less formal than adult court procedure.

The disposition of a juvenile case is based on the least detrimental alternative, so the legacy of parens patriae is still evident. However, one major controversy in juvenile dispositions is the use of indeterminate sentencing, which allows a judge to set a maximum sentence. In such cases, juveniles are monitored during their sentences and are released only when the judge is satisfied that they have been rehabilitated or when the maximum time has been served. Critics argue that this arrangement allows the judge too much discretion and is, therefore, not the least detrimental punishment.

Juvenile courts are typically organized in one of three ways:

1) as a separate entity
2) as part of a lower court, such as a city court or district court
3) as part of a higher court, such as a circuit court or a superior court

The organization model varies state by state, and some states, for example, Alabama, allow each county and city jurisdiction to decide which is the best method of organization. Where the juvenile court sits has profound implications for the juvenile process.

What to Expect: Juvenile Court Chronology

If your child is arrested or referred to the juvenile court by some other means-perhaps even by you-you will undoubtedly face a flood of emotions and have a multitude of questions. An attorney experienced in juvenile law can answer your questions and walk you through the process, while helping to ensure the best possible outcome for you and your child. Although the juvenile court process can vary somewhat from state to state, or even county to county, the following summary outlines the basic steps that you can expect if your child should become involved with the juvenile justice system.

• A juvenile court matter comes to the court’s attention when the police apprehend a minor for violating a statute or a school official, parent, or guardian refers a problem with a juvenile to the court.
• The court intake officer then evaluates the case to determine whether further action is necessary, whether the child should be referred to a social service agency, or whether the case should be formally heard in juvenile court.
• If the situation is serious enough, the juvenile may be detained in a juvenile correction facility pending resolution of the matter or he or she may be sent to an alternative placement facility such as a shelter, group home, or foster home.
• If the intake officer decides that a formal hearing in juvenile court is not necessary, arrangements may be made for assistance for the child from school counselors, mental health services, or other youth service agencies.
• If the intake officer decides that the case should be heard in juvenile court, a petition is filed with the court setting forth the statutes that the child is alleged to have violated.
• In cases of serious offenses such as rape and murder, the matter may be referred to the district or county attorney’s office, after which the juvenile may be charged as an adult, tried in the criminal courts, and even sentenced to an adult correctional facility.
• If the matter proceeds to juvenile court and the child admits to the allegations in the petition, a treatment program is ordered.
• If the child denies the allegations in the petition, a hearing like an adult criminal trial is held. The child has the right to be represented by counsel at this hearing. Rather than trying the case to a jury, however, a judge hears the matter and decides whether the juvenile has committed the acts alleged in the petition.
• If the allegations have not been proven to the court’s satisfaction, the judge will dismiss the case.
• If the judge decides that the allegations have been proven, he or she may rule that the child is a status offender or a delinquent.
• A second juvenile court hearing is then held to determine the disposition of the matter. If the juvenile is not considered to be dangerous to others, he or she may be put on probation. While on probation, the juvenile must follow the rules established by the court and report regularly to his or her probation officer. Serious offenders, however, may be sent to a juvenile correction facility.
• Other treatment options include community treatment, like making restitution to the victim or performing community service; residential treatment, in which a juvenile is sent to a group home or work camp, with a focus on rehabilitation; and nonresidential community treatment, in which the juvenile continues to live at home but is provided with services from mental health clinics and other social service agencies.

If you have any questions about juvenile charges in San Diego contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Petty Theft With Priors

What is Petty Theft (P.C. 484 & 488)?

Petty theft is the unlawful taking of another’s property, that is valued at $950 or less, was not taken directly off of the person, and the property taken was not a car or a firearm.

What is Petty Theft with a Prior (P.C. 666)?

A repeat theft offender with three or more qualifying prior convictions or with one qualifying prior conviction and either a prior sex crime conviction, serious felony conviction or violent felony conviction, who is subsequently convicted of a petty theft offense under P.C. 484 and 488. 

What is an Enhancement?

An enhancement is an increase penalty for a subsequent petty theft conviction, if three or more priors meet the conditions under P.C. 666. If the conditions are met then the misdemeanor charge of petty theft is enhanced to a wobbler offense in California.

What is a Wobbler Offense?

A wobbler in California is an offense that the prosecution may choose to charge as either a misdemeanor or a felony.  The prosecution looks to the underlying circumstances of the offense and the person’s criminal history to make the determination.

What kind or prior convictions qualify for enhancement under P.C. 666?

The following theft related offenses qualify for enhancement of petty theft:

P.C. 211 for Robbery, P.C. 215 for Carjacking, P.C. 459 for Burglary, P.C. 487 for Grand Theft, P.C. 488 for Petty Theft, P.C. 496 for Felony Receiving Stolen Property, and V.C. 10851 for Grand Theft Auto.

What must the prosecution prove to increase the penalty for a subsequent petty theft conviction?

The prosecution must prove that the person has qualifying prior convictions for a theft offense and as a result of each conviction the person served time in jail. 

What are the penalties for Petty Theft?

A misdemeanor conviction for petty theft may result in a maximum fine of one thousand dollars and up to six months in county jail.

What are the penalties for Petty Theft with a Prior?

A felony conviction for petty theft with a prior may result in an increased penalty of sixteen months, two years or three years in prison.

What legal defenses exist for Petty Theft? 

No Intent to Steal: You did not intend to take or permanently deprive the person of his or her 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 theft charges against you.

False Accusation: You are innocent, wrongly mistaken for the shoplifter and wrongfully accused of the taking of another’s property.

If you have any questions about a petty theft with priors under PC 666 enhancement contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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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

Monder Law Group - News

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

Monder Law Group - News

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