Participants in a crime - Principals and Accessories (Penal Code 32) - Orange County

March 5, 2010

Who can be held responsible for a crime?

There are two categories of people in a crime - principals and accessories.

Principals:

In general, principals are those that do the crime or those that do the crime or those that “aid and abet” in the commission. To aid and abet is to somehow facilitate, encourage or assist in the commission of the crime. Principals can all be charged with the same crime and punished the same, although obviously the direct participant is usually dealt with more severely than a person that aids and abets. For a person to aid and abet, they must have knowledge of what the other person intends to do. For example, if your friend came to you and said, “Can I borrow your car? I need it to do a drive by shooting.” or “I’m going to rob a liquor store and need a driver.” If you agree, even if you never directly participate in the crime itself, you could be responsible under the aiding and abetting theory.

Accessories:

Then there are the second category of participants - accessories. It’s sometimes referred to as “accessory after the fact,” but you can only be an accessory after the fact. An accessory (being an accessory is its own separate crime under Penal Code section 32) is someone who, with knowledge that a felony has been committed, does something to help a principal escape capture, prosecution, punishment or hides evidence, etc.

For both aiding and abetting as well as the crime of being an accessory, you must have knowledge of the illegal act the other person either plans or did.

For example, if you drove your friend to rob a bank, waited outside and drove them away afterward, you’re a principal under the aiding and abetting theory. If your friend came running to your house and told you they just robbed a bank and asked you to hide a bag of money (and you do it), you’re an accessory.

What’s the difference?

The biggest difference is in how principals can be charged and punished.  A principal, whether they directly commit the crime or they aid and abet, can be punished in exactly the same way.  In the bank robbery example, both the person who went in and did the robbery as well as the get-away driver could be charged with robbery and if convicted, could be punished exactly the same.  An accessory is its own separate crime and is a “wobbler” in California and can be either a felony that carries up to three years in state prison or a misdemeanor that carries up to a year in county jail.

Defenses:

Under either theory - being charged as a principal under the aiding and abetting theory or being charged as an accessory, the key is knowledge.  The prosecution must prove beyond a reasonable doubt that as an aider and abettor, you knew what was going to happen.  For an accessory, they must prove you knew that a felony was committed and that you actively did something with the intent that a principal to the crime escape.  That proof of knowledge is often weak in many cases, giving you defenses to the charges.

For more about your particular case, contact me so we can meet and discuss it further.

info@joedane.com

(714) 532-3600

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Receiving stolen property [Penal Code Section 496(a)] - Orange County defense

February 25, 2010

Receiving Stolen Property in Orange County

What are the elements?

Penal Code section 496, commonly known as receiving or possessing stolen property, falls under the broad category of theft charges, but there are a couple of twists.  First, in a theft case, the prosecution must prove that you took something with a specific intent to deprive the owner of their property.  For receiving stolen property, the intent requirement is a little different.  The D.A. must prove that you knew (or reasonably should have known) that the property is stolen.  That knowledge can be proven by a statement by you that you knew it was stolen, obviously, but they can try to prove it circumstantially as well.

Examples

Let’s say you buy something at a garage sale.  Suppose it’s a bicycle that’s in pretty decent shape, but is obviously used.  You know a little about bikes and know these are going for around $250 if you were to buy one from somebody that was selling it on Craigslist.  The guy at the garage sale will sell this one to you for $100.  Does that automatically mean you should have red flags and the prosecution can prove that there was obviously something fishy about the bike?  Probably not, since garage sales can often land good bargains, not necessarily making it “reasonable” that you should have known it was stolen.

But what if the same bike is being sold out of the back of a van for $20?  There, the extremely low price may give the police and DA an argument that you should have known that a legitimate owner would know the value of their property and would never sell it for that low a price.  There’s no percentage of the “normal” price or absolute rule, but a greatly discounted price may be a factor.

Similarly, if the item has serial numbers that have been altered or removed and the numbers are in a location where they can easily be seen, that may be a factor in the prosecution argument that you knew the item was stolen.

Defenses

Obviously, the biggest issue in a receiving stolen property case is whether or not the prosecution can prove the elements of the crime against you.  If you do not make any incriminating statements (or if you do, but we can suppress them based on Miranda violations), then the entire circumstances will need to be examined to see if there is enough evidence to prove knowledge by you.

The property must also be stolen, so the DA must be able to produce a person to say the item in question is theirs and that it was in fact stolen, not discarded, lost or given voluntarily to another person.

Punishment

Receiving stolen property is a “wobbler” in California, meaning it can be charged as a felony or a misdemeanor at the DA’s discretion.  The law has recently changed and now if the property value is under $950 (it used to be $400), the prosecution can charge it as a misdemeanor.  As a felony, possession of stolen property carries up to three years in state prison and as a misdemeanor, it carries up to one year in county jail.

If you are being investigated or have been arrested . . .

Don’t make a statement to the police or anyone without first discussing the case with me.  Assume any statement is going to be used against you, even if it’s not made to the police during an interrogation.  Often, they will want to call you up and get a statement from you over the phone.  They aren’t required to read you your rights in that situation, so you may not be aware that your statement may hurt you.

For further information and to schedule a consultation about your case, contact me:

info@joedane.com

(714) 532-3600

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Residential Burglary (Penal Code section 459) - Orange County

February 18, 2010

There are two degrees of burglary in California - first degree for residential burglary and second degree for all others.

Residential burglary, sometimes commonly referred to as “breaking and entering,” is the unauthorized entry into a residence (which can include things like motel rooms, apartments and condominiums as well as single family houses) with the intent to commit a theft or a felony inside.

First, it requires that the prosecution prove that you had the intent to commit the theft or felony before you entered.  If they cannot prove that any theft intent was formed until after you made entry, then the charge can be reduced substantially, possibly to a trespassing or other misdemeanor.  Similarly, if the intent was to commit a misdemeanor (but not misdemeanor theft), then it is not burglary.

Residential burglary is also a strike under California’s “Three Strikes” law, meaning that if convicted, you would be required to serve 80% of your sentence (85% if a person was home at the time) and can be used to substantially increase the punishment on  any future felony convictions.  There is also a provision in the Penal Code that makes it presumptive that if convicted of first degree burglary, probation will not be granted and a state prison sentence should be imposed.  The sentencing range on a first degree burglary is 2, 4 or 6 years in state prison.

For more information or for aggressive representation on burglary or other theft offenses, contact my office to set up a consultation.

info@joedane.com

714.532.3600

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Orange County DUI with injury (Vehicle Code 23153) - chemical tests and the law.

January 12, 2010

DUI with injury - will you be charged if you have drugs in your system?

What if you were involved in an accident that involved bodily injury to somebody?  Can they take your blood and test it for alcohol and/or drugs?  What if there are traces of drugs in your system, but from days or weeks before?

Under the “implied consent” law, by having a driver’s license in California, you have consented to submit to a chemical test for alcohol and/or drugs if you are arrested for driving under the influence.

If a person was involved in a collision and the officer determined that alcohol and/or drugs was a contributing factor, and you’re arrested for DUI as a result, they have the right to request a blood sample be drawn for evidence.

You’re right that some drugs can stay in the system longer than alcohol typically does. It will be up to the DA to prove that whatever was in your system affected your ability to drive. The twist is that there are no levels for things like marijuana (THC) or even prescription or recreational drugs like there are for alcohol.

The DA would need expert testimony from a criminalist that whatever was found in your system put you “under the influence” for the purpose of driving.

Marijuana DUI cases are notoriously tough for the DA for the reasons you mentioned in your question - the length of time THC shows up in a test.

The other part of this is that whatever drug is in your system must have influenced your ability to drive. For example, if it was established that you were 100% NOT at fault in an accident, but THC was discovered in your system, how can they say that whatever level was in your system made you under the influence (and therefore unable to safely drive, which is required for a DUI)? That can be different than if the scenario was the same, but your blood test came back 0.10% for alcohol, since it’s a violation to drive with 0.08% or more in your system (and that section - 23152(b) of the Vehicle Code), even without “bad” driving.

The bottom line? Drug DUI cases add a new twist to a DUI case and a thorough analysis of the facts, chemical tests, legality of the arrest and blood sample collection will all be needed by your defense attorney.

info@joedane.com

(714) 532-3600

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Resisting Arrest - Orange County Defense Attorney

November 2, 2009

Resisting Arrest - Penal Code section 148(a)(1)

The crime of “resisting arrest” is covered in Penal Code section 148(a).  It is a misdemeanor to willfully and unlawfully “resist, obstruct or delay” an officer in the performance or attempted performance of their duties.  If convicted, the maximum possible sentence is up to one year in county jail and/or a fine of up to a thousand dollars.

Is not answering questions “resisting or delaying”?

There are different levels of police interaction and each has its own rules.
Consensual Encounters - the police need no justification or evidence to contact anyone, as long as they are in a place they have a lawful right to be.  The key to a consensual encounter is that you truly have to be free to walk away and not cooperate if you don’t choose to.  You don’t have to answer any questions.  When in doubt, ask, “Am I free to go?”  If they say yes and you don’t feel like sticking around, tell them to have a nice day and be on your way.  If they say you’re not free to go and/or they do something that makes it so you’re not free to go, then you are detained.

Detentions - a detention allows the police to temporarily hold you for investigation, but it is limited.  They must have “reasonable suspicion” of criminal activity and some information that connects you.  They can then detain you for a “reasonable” period of time while they confirm or dispel their suspicions.  During a detention, you are obligated to identify yourself (and failing to do so or falsely identifying yourself is a separate crime).  You are still not obligated to incriminate yourself, however.  During a detention, they are not required to read you your Miranda rights.  That doesn’t mean that the Fifth Amendment doesn’t apply to you though.  There’s nothing that says you have to help them gather evidence against you, whether you’ve been read your rights or not.  If you do choose to answer their questions, however, intentionally misleading or delaying answers may rise to the level of a misdemeanor resisting, delaying or obstructing offense.  Better safe than sorry - aside from answering truthfully who you are, if you’re under investigation or detained, ask for an attorney and keep quiet.

Arrests - Finally, if the police develop “probable cause” to arrest you, you can be taken into custody.

For more about interacting with the police, see this article.

Do I have to answer any questions at all?  Or will that be “resisting”?

As I discussed above, you must identify yourself truthfully during a detention.

If you’re arrested, they must advise you of your Miranda rights before any interrogation.  If you hear those magic words starting (”You have the right to remain silent . . .”), that’s your cue to keep quiet and request a lawyer.  There is nothing you can say or do at that point to get them to “un-arrest” you.  Either they have enough (and they think they do - that’s why they arrested you) or they don’t.  If they have enough, your time to explain will come, but you really should speak with an attorney first.  If they don’t have enough and they’re hoping you’ll say something to build their case for them… don’t.  It’s tough to undo a statement to police.  Don’t help them build a case.  Keep quiet.

What conduct is “resisting or delaying”?

If the police have enough information to detain you, they are entitled to use “reasonable force” to keep you there while they investigate.  If they inform you that you’re either being detained or arrested and you run, that can be enough to add on the charge of resisting or delaying.  A brief protest is usually insufficient, so if you face a resisting arrest charge because you questioned the officer’s actions or challenged his authority, you may have a valid defense.

What are the defenses?

The law says that a person may not use force against a police officer - that’s a separate crime of battery on a peace officer [Penal Code section 243(b)], but it is a defense to resisting arrest if the arrest itself was unlawful.

A person is NOT GUILTY of resisting arrest if the underlying detention or arrest was unlawful.  One of the elements to resisting arrest is that the officer must be in the “lawful performance” of their duties.  An illegal detention or arrest without sufficient evidence is unlawful and any resisting arrest is not technically against the law.  If the arrest was lawful, but the officer used excessive force in doing so, then they are not in the “lawful performance” of their duties and you would have a defense to a resisting arrest charge.

And finally - a person must know (or reasonably should know) that the person they’re resisting is a peace officer.  If an officer is undercover, fails to properly notify you that they’re the police and you run away - it’s NOT resisting or delaying an officer.

Every case is unique - to discuss your situation further, please contact me and schedule a case review.

Joe Dane

info@joedane.com

(714) 532-3600

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