Understanding What Constitutes a “Serious” or “Violent” Felony Under California’s Three Strikes Law

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If you already have a prior felony conviction in the state of California, and are charged with a second, third, or subsequent felony, it matters greatly if one or more of the felonies are regarded as “serious” or “violent” in the eyes of the law. This is because California has a “Three Strikes” law that applies to the sentencing of repeat felony offenders. Under the current incarnation of the law, conviction of three or more serious or violent felonies in the state is grounds for the imposition of a 25-years-to-life prison sentence. This rule, though still harsh, is a softening of the law in its pre-2012 form. Because of the reforms, certain individuals who are currently serving a lengthy prison sentence under the old law may be eligible for a sentence reduction. The purpose of this article is to explain what constitutes a violent or serious felony under California law. If you have been charged with a crime in California, contact an experienced California criminal defense attorney. For you future freedom, it is imperative that you mount the strongest possible defense of the charges against you.

“Serious” or “Violent” Felonies are “Strikes” Under California’s Three Strikes Law

California Penal Code Sections 1192.7c and 667.5c outline what constitutes a “serious” or “violent” felony in the state of California. As common sense dictates, crimes like murder and rape rise to the level of both “serious” and “violent.” Other “strike” felonies codified by statute include felonies in which the defendant personally brought about great bodily injury on the victim, felonies in which the defendant personally used a firearm, and felonies subject to the state’s “gang enhancement” sentencing law. The inclusion of these types of crimes on the “strike” list is hardly controversial. Other offenses on the list, however, are less obvious “strike” candidates.  Take for example, robbery and residential burglary.  When these crimes involve violence or cause great bodily injury to victims, it is no-brainer that they should be counted as “serious” and thereby as strikes.  But what about when burglary or robbery does not involve violence, or occurs when the residents of a home are not even present? Here, the law makes no distinction; these felonies are deemed “serious” just the same.

Drug Crimes are Among the Most Impacted by Reforms to California’s Three Strikes Law

Drug crimes, such as possession of a controlled substance, reflect an interesting and somewhat complex grey area in the reformed version of the state’s Three Strikes Law. Under the 2012 version of the law, for a drug-related third or subsequent felony offense to justify a 25-years-to-life mandatory sentence, the offense must included more than mere possession.  Specifically, the drug offense must involve possession for sale, transportation, or manufacturing. In such instances, the maximum penalty is proper.

If you have been charged with a second, third, or subsequent felony in the state of California, contact an experienced criminal defense attorney to mount the strongest defense possible of the charges against you.

Bringing a Wrongful Death Lawsuit in the State of California

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Nothing hurts more than losing a loved one long before their time as the result of another person’s carelessness, recklessness, or intentionally wrongful act. First, there is the shock, grief, and sense of the loss one experiences. Then, there may be fears over the loss of financial support provided by the loved one. Finally, there is the deep need for justice. California’s Wrongful Death laws exist to make the pursuit of justice possible and to help the survivors of the deceased seek financial compensation for the support they were deprived of by a senseless act of carelessness, recklessness, or intentional wrongdoing. If your loved one has suffered a wrongful death, contact a dedicated and experienced California wrongful death attorney.  Nothing can undo the loss you have experienced, but a wrongful death lawsuit can greatly aid your plight as a survivor.

The California Code of Civil Procedure Governs California Wrongful Death Lawsuits

California’s wrongful death law is California Code of Civil Procedure 337.60, et seq. It specifies what constitutes a wrongful death in the state, which survivors may file a wrongful death claim, and what damages are available to survivors through a wrongful death claim. Under the statute, a wrongful death occurs when a person is fatally injured as the result of the negligence or wrongful act of another person, corporation, institution, or entity. Negligence encompasses both carelessness and recklessness. Specifically, negligence is a breach of a duty of care owed that results in damages.

For example, we all owe duties of safe driving in accordance with the rules and regulations of the road to one another. If another person drives drunk and causes a fatal car crash, the fatality is considered a wrongful death under California’s wrongful death law. From this wrongful death arises a wrongful death legal claim. Only certain “survivors” of the deceased may rightfully bring the wrongful death claim. Eligible survivors include the surviving spouse, domestic partner, and children. If there is no surviving spouse, domestic partner, or child to bring the claim, the state allows for a wrongful death claim to be brought by anyone who would be entitled to inherit the property of the deceased through the process of intestate succession. In other words, if the deceased died without a spouse, partner, or children, and without a valid will, parents and other relatives may be eligible to bring a wrongful death claim.

Types of Damages Available to Survivors Under a Wrongful Death Claim

A California wrongful death claim makes available to survivors a number of damages, including lost income, loss of anticipated financial support, funeral and burial expenses, and other losses. If you have lost a loved one to a wrongful death in the state of California, contact an experienced California wrongful death attorney. Time is of the essence, as the state imposes a two-year statute of limitation from the date of death on the filing of a valid wrongful death claim .

Defending Against Gang Crimes Charges in California

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California imposes strict punishments on gang-related crimes. If you have been charged with a gang crime, it is imperative that you contact an experienced California criminal defense attorney.

Both California and Federal Law Punish Gang Crimes Harshly

In the United States, there are two bodies of law – State and Federal. With regards to gang crimes, both California (state) and federal law impose strict penalties. This is because both bodies of law allow for sentencing “enhancements.” An “enhancement” is an increase. An enhanced punishment may be ordered by a court for a gang crime conviction even if you are not officially a member of a gang. Committing a crime on behalf of a gang or as an attempt to become a member of gang is enough.

On the state level, the law that provides for sentencing enhancement for gang crimes in California is Penal Code 186.22 PC. Under this law, anyone who commits a felony crime to benefit a gang is subject to an enhanced prison sentence. Importantly, the concept of “benefit” requires specific intent. Specific intent is a legal doctrine that pertains to state of mind. In other words, to be guilty of committing a crime for the benefit of a gang, you must intend to promote, further, or aid in the gang’s criminal activities. If specific intent is proven in court, an enhanced sentence is proper under California law.

On the federal level, the law that provides for sentencing enhancement for gang crimes in California and the other 49 states is 18 USC 521 – the Criminal Street Gangs law. The federal Criminal Street Gangs statute authorizes a penalty enhancement of as many as 10 years for gang members who commit crimes in furtherance of the criminal activities of a gang, or simply to maintain or improve his or her place in the gang. The enhancement is not merely an extension of the penalty for the underlying crime, but an additional punishment. For example, if a gang member commits the felony of armed robbery, he or she will be punished both for the felony and for committing the felony to further the gang’s activities. As you can see from both the state and federal laws, gang-related crimes are punished extremely harshly in the U.S.

An Experienced Criminal Defense Attorney Can Defend You Against Gang Crime Charges in California

With enhanced punishment meted out for conviction of gang crimes in California, you need an experienced California criminal defense attorney to protect your legal rights and defend against the charges levied by state and/or federal law. To convict you of a gang crime, the prosecutor must prove that you committed the underlying crime, that you were a member of a gang, that the gang actually meets the criteria of a recognized criminal gang, and that you committed the underlying crime in furtherance of the gang’s activities. An experienced California criminal defense attorney will explore all avenues of reasonable doubt and work to protect your rights.

Defending Against Voluntary Manslaughter Charges in California

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It is not always the case that murder charges result when one human being kills another. The reason for this is because the law sometimes factors in intent when determining the criminal charges to be levied against a defendant. The purpose of this article is to explain the lesser charge of voluntary manslaughter. If you have been charged with voluntary manslaughter in the state of California, it is imperative that you contact an experienced California criminal defense attorney. With the state’s prosecutor making every effort to prove each element of the charges against you, an experienced attorney is needed to protect your legal rights.

Voluntary Manslaughter is a Lesser Charge to Murder

Murder is the most serious charge that the state can bring against a defendant accused of killing another human being. The legal definition of murder is “the killing of a human being by another human being with malice aforethought.” This definition is one of the oldest in the law, dating all the way back to the common law era in England. To the layperson, the words that jump out are “malice aforethought.” What this antiquated language, sometimes termed “mens rea,” means in modern terms is “specific intent.” Specific intent can be understood as “state of mind.” To bring it all together, a murder charge is only appropriate when there is probable cause that the defendant acted with a certain type of intent in allegedly killing the victim.  

There are, specifically, four types of “malice aforethought”:

  • Intent to Kill
  • Intent to Commit Grievous Bodily Harm
  • Depraved Heart
  • Felony Murder

Voluntary Manslaughter does not reflect any of these four types of “malice aforethought.” Its applicability is rather narrow. A charge of voluntary manslaughter is only appropriate when a human being kills another human being during a sudden dispute or in the “heat of passion.” The classic example that brings this abstract legal terminology home is the scenario in which a spouse comes home to find his or her spouse in bed with another person and, in a sudden fit of rage, kills the both of them. Returning to the concept of state of mind, intent is clearly different in this scenario than the four types of malice aforethought. This is especially the case with regard to the duration of forming the mind state to kill. “Suddenness” is key – the being caught off guard and enraged by a most traumatic sight.

Penal Code 192(a) Governs Voluntary Manslaughter in California

In the state of California, the law that governs voluntary manslaughter is Penal Code 192(a).  Conviction of the crime will result in a term of three, six, or eleven years in one of California’s state prisons. With jail time a very real possibility, it is imperative that you entrust your legal defense to a skilled and experienced California criminal defense attorney. Protect your legal rights and contact an attorney as soon as possible.

Understanding the Insanity Defense in California

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If you or a loved one have been charged the murder in the state of California and believe that you were not in your right mind at the time of the alleged incident, the legal defense of insanity may be available to you. The purpose of this article is to explain the insanity test used by the state of California. To protect your legal rights and understand the possible applicability of this defense to the charges against you, contact an experienced California criminal defense attorney.

The M’Naughten Test

There are four insanity tests used in the courtrooms of the Unites States: 1

  • M’Naughten
  • Irresistible Impulse
  • Modal Penal Code
  • Durham

Each state is free to utilize the test it believes to be the most reliable and effective. The M’Naughten Test is the test that California applies when considering the validity of an invocation of the defense of insanity. The reason the insanity test is made available is a theoretically humane one – that you cannot be found guilty of a crime you committed if you were legally insane at the time of the commission of the crime. The rationale here goes to state of mind. To be guilty of the crime of murder, for example, you must have possessed either an intent to kill, an intent to commit serious bodily harm, a so-called “depraved heart,” or killed another human being during the commission of an inherently dangerous felony.

Intent is synonymous with state of mind, and, with regard to murder, is often marked by the elements of deliberation and premeditation. These mental acts are considered to require a sane mind to truly reflect intent. After all, it is the ill intent that merits the harsh punishment meted out for a murder conviction. But what if a killing was the product of an insane mind – a mind that does not understand morality or the consequences of certain actions? This is where the M’Naughten Test comes in.

Under the M’Naughten Test, you are considered legally insane if you either did not understand the nature of a criminal act you committed or did not understand that your actions were morally wrong. If either prong of the test is met, you are considered legally insane and thus cannot be found guilty of the crime you have been charged with.

A Successful Insanity Defense Leads to Mental Health Care

If you are found legally insane under California’s M’Naughten Test, you will be sent to a state mental hospital instead of prison. To invoke the insanity defense, it is imperative that you rely on the skill and expertise of a California criminal defense attorney. Evidence will need to be presented, including that pertaining to your mental health history, and it must be proved by a preponderance of evidence. With your legal rights and future at stake, contact an experienced California criminal defense attorney immediately.

Defending Against Embezzlement Charges in the State of California

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Embezzlement is a surprisingly common crime in the state of California. People assume that embezzlement can only occur in a white-collar context. This is simply not true, as the elements for the criminal charge of embezzlement can be satisfied in many contexts and need not involve large sums of money. Embezzlement may be committed with property or cash. The purpose of this article to explain how California defines embezzlement and what the penalties are for the crime.  

If you have been charged with embezzlement, it is critical that you contact a skilled and experienced California criminal defense attorney as soon as possible. The state’s prosecutor will be working to prove every element of the charges against you beyond a reasonable doubt. For this reason, you need a skilled attorney to defend your legal rights and explore every avenue of doubt.

California Penal Code 503 Criminalizes Embezzlement

Embezzlement is a fairly complicated crime involving several legal elements. Under California Penal Code 503, you may be charged with the crime of embezzlement if an owner of property (e.g. cash, personal property, real property) entrusted the property to you, did so because he or she trusted you, and you fraudulently converted or used the property for your own benefit while intending to deprive the owner of the property or its use. As you can see, embezzlement is a multi-layered crime. This means that the state’s prosecutor will have to put a lot of work in, as there are so many elements to prove beyond a reasonable doubt.

  • First, there is entrustment. The state’s prosecutor will have to prove that the victim, whether directly or through a valid agent, entrusted you with the property in question.
  • Second, the prosecutor will have to prove that the victim trusted you. Common valid bases of trust include employer-employee and bailor-bailee relationship. The latter relationship involves a temporary transfer of possession of property (e.g. when you give the keys of your car to a valet to park it).  
  • Lastly, fraudulent conversion is synonymous with taking or using. The fraud aspect of fraudulent conversion is present when you seek to take unfair advantage of the property-entrusting person or intend to cause that person a loss by breaking his or her trust or intentionally failing to honor a duty.

Embezzlement Penalties Depend on the Value of the Property

The more embezzled, the greater the punishment is the most general rule with regard to penalties of an embezzlement conviction. Accordingly, the court will look to the nature and extent of the property in question. Smaller violations may be categorized as a misdemeanor rather than a more serious felony charge. Conviction for either, importantly, may result in jail time. For this reason – for your freedom – it is essential that you contact a skilled and experienced California criminal defense attorney to mount the strongest possible defense against the state prosecutor’s efforts to obtain a conviction.

Defending Against Robbery Charges in the State of California

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Robbery and Burglary are commonly confused crimes in the state of California and elsewhere.  Both crimes are prosecuted aggressively and subject to serious penalties including jail time. If you have been charged with robbery, it is essential that you contact a skilled and experienced California criminal defense attorney as soon as possible. In the face of jail time and other penalties, you need a professional to mount the strongest possible defense on your behalf and challenge the state’s efforts to prove each element of the crime of robbery beyond a reasonable doubt. The purpose of this article is to explain the difference between robbery and burglary, and why it is so important to be represented by an attorney when charged with either crime in the state of California.

The Force or Fear Requirement

Most people know that both burglary and robbery have something to do with stealing, but are not quite sure about the specifics of each criminal charge. In the most general sense, it is the requirement of force or fear that distinguishes the crime of robbery from the crime of burglary.  The law that codifies this distinction in the state of California is Penal Code 211. Penal Code 211 defines robbery as the taking of personal property that is in the possession of another person, from the victim’s person or immediate presence, against the victim’s will, and through the use of either force of fear. As is the case with every legal definition, every word matters.

As you might imagine, the term “personal property” includes a vast array of items. Among the most common are cash, jewelry, electronic devices, and other valuable goods. The term “another person” is as simple as it sounds – it is just someone other than the robber.  The language “from the victim’s person” refers to the victim’s body or clothing. Similarly, the “immediate presence” of the victim refers to the area very close to the victim. “Against the victim’s will” means that the victim did not give the personal property in question in a voluntary manner. Rather, as the last element – “through force of fear” – indicates, the personal property was surrendered in response to the use of force or fear. Force includes a variety of physical actions, such as grabbing and shoving. Fear may be instilled via threats of violence or the brandishing of a weapon, such as a knife or gun.

Burglary lacks the requirement of use of force or fear. It simply includes the entering of a room, structure, or locked vehicle with the intent to commit a felony therein. As you might imagine, a robbery conviction is punished more severely precisely because of the use of force of fear. This element is what makes robbery a more serious crime, in some ways, than burglary. Accordingly, a first-degree robbery charge in the state of California may be punished by up to nine years in prison. If you have been charged with robbery in California, contact a skilled and experienced California criminal defense attorney immediately. 

Defending Against a Wrongful Death Lawsuit in the State of California

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If you have lost a loved one as a result of the carelessness or recklessness of another person, business, or institution, you may be able to bring a wrongful death lawsuit in a California civil court against the responsible party.  The purpose of this article is to explain what a wrongful death is, who may bring a wrongful death claim in the state of California, and what damages are available to wrongful death victims.

In California, a death is considered “wrongful” when it occurs as the result of the negligence, recklessness, or intentionally wrongful conduct of another individual, business, institution, or other entity. Negligence, the most common basis for a wrongful death suit, is a legal doctrine.  Under the doctrine, negligence occurs when a breach of a duty of care owed to another person causes damages.

We owe and are owed a vast array of duties of care. There is the duty of safe driving on California’s streets and highways, for example. There is also the duty of businesses and construction contractors to keep their premises and sites safe, whether by performing routine cleaning and inspection or by posting adequate notice of hazardous conditions. When one of these duties is breached and damages result, negligence has occurred. Returning to the duty of safe driving, an all too common and sometimes tragic examples of breaches include distracted driving (e.g. texting while driving) and drunk driving. When one of these breaches causes a traffic accident, negligence has occurred. In most cases, the victim – the individual who has suffered harm to his or her person or property – can bring a personal injury lawsuit against the at-fault party to recover compensation for the damages suffered. However, in cases where the breach and accident is so severe as to result in a fatality, only a wrongful death lawsuit may be brought.

A wrongful death claim is a “survival” claim. In other words, the claim against the at-fault party “survives” the death of victim. Not everyone may bring a wrongful death claim; in California, only the following people may bring the claim over the loss of a loved one:

  • The deceased individual’s surviving spouse;
  • The deceased individual’s domestic partner;
  • The deceased person’s surviving children;
  • The deceased individual’s financially dependent would-be spouse;
  • The deceased individual’s financially dependent stepchildren;
  • The deceased individual’s financially dependent parents.

Only these parties may bring a wrongful death claim for damages. Damages include the funeral and burial expenses of the deceased, medical and hospital expenses incurred prior to death, lost income including with present and future income, the value of domestic services, and even loss of love, affection, emotional support, and guidance. If you have lost a loved one due to the negligence or wrongful conduct of another, reach out to a dedicated and experienced California wrongful death attorney. A dedicated attorney will review the specifics of your case, explain your legal options, and work to obtain the compensation you need and deserve for your loss.

Bringing an Animal or Dog Bite Attack Lawsuit in California

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If you or a loved one have been the victim of a dog bite or animal attack in the state of California, you have legal options. Dog bites and animal attacks occur all too often in the U.S., harming millions of citizens annually. Worst of all, animal incidents can hurt children. The cost suffered includes medical bills, physical injuries, emotional trauma, and even permanent disabilities in some cases. Of course, it is not possible to hold the dog or animal legally responsible for a bite or attack. It is the owner that must be held responsible for failing in his or her duty to control the dog or animal and keep the public safe from harm. To hold an owner responsible for a dog bite or animal attack and recover compensation for your losses, reach out to an experienced California personal injury attorney.

In California, the law addresses dog bites and animal attacks in section 3342 of the state’s civil code. Under the law, the owner of any dog is legally responsible for damages suffered by any person who is bitten by the dog while either in a public place or lawfully in a private place.  Public places include public streets, parks, and other areas. Private places include homes, businesses, and other locations. Private places also include the property of the owner of the dog, and irrespective of knowledge of the dog’s past or present reputation for viciousness, so long as you are on the owner’s property with an express or implied invitation. As you might imagine, this caveat covers postal workers and other delivery-related persons.

California imposes its dog bite and animal attack law aggressively. In fact, it is what is known as a “strict liability” state with regard to dog bites and animal attacks. This law prevents the owner of a dog or animal from defending against criminal or civil charges by arguing that he or she was unaware of any dangerous propensities or the dog or animal. Regardless of knowledge, the owner will be held legally responsible for the attack and injuries suffered as long as the incident occurred in a public place or in a private place where the victim was legally present. This strict liability approach greatly helps victims of dog bite and animal attacks within the state of California.

Reach out to a skilled and experienced California personal injury attorney today if you or a loved one have been the victim of a dog bite or animal attack in the state of California. There is a limited time in which you may file suit, so it is important that you act in a timely fashion. With the help of a skilled attorney, you may be able to obtain the compensation you need and deserve for your personal injuries, medical bills, emotional trauma, and other losses. California is tough on dog bites and animal attacks, and a skilled attorney will put the law on your side.

A Revocable Living Trust is an Estate Planning Fundamental in California

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Busy already in the day-to-day, it can feel like there is no time to set aside for planning on behalf of our loved ones and charitable causes. With the help of an experienced California estate planning attorney, however, estate planning does not have to be overly complex or time-consuming. An attorney can help you select the estate planning tools that are best for your assets and intentions. One such tool is the revocable living trust. This article will introduce Californians to the benefits of this type of trust.

Estate planning is a part of wills and trusts law. In this field of law words carry especially deep significance. Accordingly, to understand the nature and function of a revocable living trust, one must understand the words “revocable,” “living,” and “trust.”

“Revocable” means capable of being canceled or changed. This word and its definition speak to something about the greater picture of what a revocable living trust is – that it is something in effect while its creator is still alive. This feature is unique because some estate planning instruments, such as wills, only take effect upon the death of the grantor (the founder, or creator, of the trust). So, at this stage, we know that a revocable living trust is something that can be canceled (revoked) and operates while the grantor is still living.  

The last word in the series of three,“trust,” is most important and far-ranging. A “trust” is at its roots a relationship between three people: the grantor, the beneficiary, and the trustee. In this relationship, the grantor gives property (e.g. money, real estate, personal property) to the trustee (a trusted friend or relative, frequently) to manage and hold in trust for the benefit of the beneficiary. The terms of the management of the trust property can vary. Sometimes, once the trust is created, the terms are set in stone. Other times, even once the trust has come into existence, the terms can be changed by the grantor. It is this flexibility that makes the trust “revocable.”

Now that you understand the nature of a revocable living trust, it is time to understand the function of the instrument. The reason revocable living trusts are a popular estate planning instrument in the state of California is because they help individuals maintain control over their assets while they are still living and dictate how they are distributed at death. Such control and management allows for a revocable living trust to substitute for a will. In addition, a revocable living trust is capable of reducing taxes and other costs associated with the management and distribution of one’s estate. Finally, revocability is akin to flexibility. Being able to change the trust’s terms allows one to more easily adjust to major life events such as marriage, divorce, and children.  If a revocable living trust sounds like it might be a wise estate planning instrument for you, reach out to a skilled and experienced California trusts attorney.