Tuesday, October 8, 2013

Mentone Criminal Defense Attorney 909.913.3138 Free Consultations

Mentone Criminal Defense Attorney

Criminal Defense Attorney Christopher Dorado represents defendants charged with misdemeanors and felonies in the city of Mentone, CA. 100% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are free to the accused and his or her family.

If you are charged with a crime in Mentone, California, including Sex Crimes, DUIs, or any other felony or misdemeanor, contact criminal defense attorney Christopher Dorado today. 909.913.3138

For more information on Criminal Defense in San Bernardino County, including the city of Mentone, please visit any of the following websites: Sex Crimes Attorney San Bernardino County, DUI Attorney San Bernardino County, and Criminal Defense San Bernardino County. Thank you.


California Sodomy Laws Explained Penal Code 286 PC: Criminal Defense Attorney

California “Sodomy” Laws: Penal Code 286 PC

Unlawful sodomy is a crime in California, and can be filed as misdemeanors or felony offenses. The laws on unlawful sodomy can be found at California Penal Code 286PC. There are 48 chargeable sodomy offenses in California.

Sodomy is sexual conduct that consists of contact between one person’s penis and another person’s anus. Any sexual penetration, however slight, is sufficient to qualify as sodomy. All sodomy is not illegal, however. If two adults of sound mind consent to engage in sodomy no crime has been committed. Therefore, we look to Penal Code 286 PC to determine what elements must be met in order to constitute unlawful sodomy.

Under Penal Code 286 PC, the prosecution must prove there was penetration with a victim who was alive at the time of penetration. Even slight penetration can qualify. Penetration can be established by circumstantial evidence (for example, sperm in rectum plus additional signs of trauma or injury). Skin-on-skin contact is not required for unlawful sodomy. Therefore, if the victim is wearing underwear during anal penetration, this will still constitute penetration.

Sodomy is a general intent crime. This means that in order to be punishable by law, the defendant must have meant to commit the act that caused the harm- not necessarily the harm itself. The defendant does not need to intend that a precise harm or injury occur, just intend to commit sodomy.

The prosecution must also show that sodomy was accomplished by means or force, violence or fear, and/or performed on someone who is unable to give consent. What constitutes consent is discussed below under “Defenses”.


The prosecutor will rely on several factors when determining whether to file a sodomy charge as a misdemeanor or a felony. A violation of Penal Code 286 filed as a misdemeanor is punishable by up to one year in jail. A judge may also impose an additional fine of up to $70 after evaluating the defendant’s ability to pay. A violation of Penal Code 286 filed as a felony is punishable by a year or more in prison. When determining how to file an unlawful sodomy charge, prosecutors will evaluate:

·         Age of the participants: One factor used to determine the punishment for a violation of Penal Code 286 is the age of the participants. This includes whether the victim is a minor, both participants are minors, and the age difference between participants. Severe punishments, like life imprisonment, may exist in those instances that the defendant is 18+ and the alleged victim is ten years old or younger.

·         Means used: Another factor used when determining the punishment for a violation of Penal Code 286 is the means used by the defendant when engaging the victim in unlawful sodomy. Means include force, violence, threat of injury to the victim or another, threat of retaliation, impersonation of the victim’s spouse, or threat by a public official to arrest or incarcerate the victim.

·         Condition of the victim: Furthermore, the prosecutor will also consider the state of the victim when sodomy was performed. This includes considering whether the victim was unconscious or asleep at the time of penetration, whether the sodomized victim was disabled and incapable of giving legal consent due to this disability, or whether victim was intoxicated.

·         Act was committed in concert with others: Lastly, the prosecutor will consider whether unlawful sodomy was committed by several individuals at the same time as the defendant, or whether certain individuals aided defendant in the commission of the sodomy.

If unlawful sodomy is performed during the commission of a murder, however, the defendant will be held liable under the felony-murder rule. This murder is also a special circumstance, which means defendant may face death or life imprisonment without the possibility of parole.

Closely Associated Crimes to Unlawful Sodomy (PC 286)

Closely associated crimes to California Sodomy (PC 286) include: lewd act on a child (PC 288(a)), sexual battery (PC 243.4), rape by force/fear of bodily injury (PC 261 (a)(2)), and sexual intercourse/sodomy with child 10 years or younger (PC 288.7(a)).

Defenses to Sodomy

Consent

Consent is a defense to sodomy under Penal Code 286. If the alleged victim consented to sodomy, and was not under the age of 18 at the time consent was given, the defendant will have a viable defense.

“Consent” means both individuals decided to partake in an act of sodomy of their own free will. A consenting person acts freely and voluntarily, and is also able to recognize the nature of the act in which he/she is about to engage. Consent cannot be gained by fraud; therefore, if the defendant lied to the victim in some way that made the victim want to consent, this consent will not be deemed valid.

Consent is not assumed merely because individuals have had previous sexual relations, or are currently dating or married. Additionally, minors are deemed incapable of giving consent, so this will not be a defense if the victim was underage at the time of alleged sodomy.

Reasonable, Good Faith Belief that the Minor was an Adult

If the defendant had a reasonable, good faith belief that the alleged victim was an adult at the time defendant gained consent to sodomy, this may serve as a defense. In order to be considered reasonable, the circumstances surrounding the encounter may be evaluated to determine whether an ordinary person could reasonably make a similar mistake of age.

To learn more about the crime of unlawful sodomy (PC 286), in California, including defenses to sodomy, contact a California sex crimes criminal defenseattorney today.


CriminalDefense attorney Christopher Dorado represents defendants charged with sodomy (PC 286) in the county of San Bernardino, including the cities of Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario, Yucaipa, and more. There is no charge for initial consultations and our office offers 24/7 emergency service. 909.913.3138

Christopher Dorado also represents defendant charged with Driving under the influence (California DUI)of alcohol or drugs (VC 23152(a)), and (VC 23153(a)).

Pornography Laws California Penal Code 311 PC Criminal Defense Attorney

California “Child Pornography” Laws: Penal Code 311

California law prohibiting child pornography can be found at Penal Code 311 PC. California Child Pornography laws prohibit individuals from possessing or distributing materials depicting a minor engaging in or simulating sexual conduct. There are 7 chargeable child pornography offenses in California. Charges for violations of child pornography laws (PC 311) can be filed as either misdemeanors or felonies.

Under PC 311, sexual conduct includes all sexual intercourse between people of the same or opposite sex or between humans and animals. This conduct consists of penetration of the vagina or rectum with any object, masturbation, sadomasochistic abuse, exhibitionism, defecation or urination.

Child pornography laws in California include, but are not limited to: possession of child pornography (PC 311.11), and developing/producing child pornography (PC311.3).

What must be proven to convict for Possession of Child Pornography (PC 311.11)?

To prove that a defendant is guilty of possession of child pornography (PC 311.11), the prosecutor must first show that the defendant possessed materials involving the sexual activity of a minor. Child pornography punishable under Penal Code 311 can take many forms, including film, photographs, photocopies, computer hardware/software, or CD-ROM, though this list is not exhaustive.

Next, the prosecutor must show that the defendant possessed this material knowing that it depicted persons under the age of 18 engaging in, or simulating sexual activity.

There is no requirement that the material be “obscene” as is required for developing and producing child pornography (PC 311.3) discussed below.

Punishment for Possession of Child Pornography

The punishment for possession of child pornography can vary, depending on if the charge is filed as a felony or a misdemeanor. Punishment can range from incarceration in state prison, registering as a sex offender, incarceration in county jail for up to one year, a fine not exceeding $2,500, or some combination of incarceration and fine.

What must be proven to convict for Developing and Producing Child Porn (PC 311.3)?

To prove that a defendant is guilty of sexual exploitation of a minor (PC 311.1(a)), the prosecutor must first show any one of the following:
1.      Defendant brought the obscene material into California
2.      Defendant possessed, prepared, published, produced or developed the obscene material
3.      Defendant offered to distribute obscene material to someone else, OR
4.      Defendant distributed, showed, or exchanged the obscene material with someone else

The prosecution must also prove that when defendant acted, he/she knew the character of the matter. Next, the prosecution must show when defendant acted, he/she knew that the matter showed a person under the age of 18 who was personally participating in or simulating sexual conduct.

Lastly, the prosecution must show when defendant acted, he/she intended to sell, distribute, show, or exchange the material with someone else for money or commercial benefit.

Material is considered “obscene” if it shows or describes sexual conduct in an obviously offensive way. Furthermore, a reasonable person would find this material lacking in any serious artistic, literary, or scientific value. In order to be obscene, material must also be considered by an average adult to appeal to a “prurient” interest, meaning it is arousing in a sexual way.

Punishment

A person who violates Penal Code 311.3 can be fined up to $2,000, or imprisoned in the county jail for up to a year. A defendant with a prior conviction of Sexual Exploitation of a Minor will likely serve time in state prison and may have to register as a sex offender.

Closely Associated Crimes to California Child Pornography  (PC 311)

Closely associated crimes to child pornography (PC 311) include: distribution of harmful matter to a minor (PC 313.1(a)), contracting to pay a minor for an unlawful sex act (PC 310.5), and attempting to contract with a minor to commit a lewd act (PC 288.2).

Defenses to Child Pornography (Penal Code 311)

Material Serves a Legitimate Purpose

If the defendant can show that the materials with which he/she was engaging were not for the purpose of child pornography under PC 311, and instead contained scientific or educational value, defendant can be found not guilty of distributing child pornography.

Entrapment

Entrapment is another defense to child pornography charges (PC 311). The defendant must establish that he/she was persuaded by a police officer to engage in child porn, otherwise he/she would never have engaged in the activity. Though some deception is permitted, an officer cannot use pure fraud to lure a person into committing a crime he/she was not otherwise willing to commit.

Mistake of Age

Under PC 311.11 possession of child pornography, the defendant must have known the individuals in the material are under the age of 18. If the material is marketed as adult porn, but the individuals engaging in sexual activity are actually minors, the defendant may have a defense that he/she did not knowingly possess child pornography. This would counter the intent requirement that a defendant “knowingly possess” child pornography.

To learn more about the crime of child pornography (PC 311) in California, including defenses to child pornography, contact a California sex crimes criminal defenseattorney today.

CriminalDefense attorney Christopher Dorado represents defendants charged with child pornography (PC 311) in the county of San Bernardino, including the cities of Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario, Yucaipa, and more. There is no charge for initial consultations and our office offers 24/7 emergency service. 909.913.3138


Monday, October 7, 2013

PC 647(f) California Drunk in Public & Public Intoxication Criminal Defense Attorney

California “Drunk in Public” Laws: Penal Code 647(f)

California “drunk in public” law, which punishes those found guilty of “public intoxication” can be found at Penal Code 647(f) PC. Charges for public intoxication (PC 647(f)) are filed as misdemeanors.

What must be proven to convict for Public Intoxication (PC 647(f))?

To prove that a defendant is guilty of public intoxication (PC 647(f)), the prosecutor must show that the defendant was

1.      In a public place willfully under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of those substances, AND

2.      One of the following:

a.       The defendant is in a condition that makes him/her unable to exercise care for his/her safety or the safety of others, OR

b.      By reason of intoxication, defendant interferes with, obstructs, or prevents the free use of any street, sidewalk, or other public way

“Willfully” means the defendant willingly or purposely became intoxicated. To be found guilty of public intoxication, defendant must have knowingly ingesting alcohol or drugs. Discussed more in detail below under “Defenses” is the defense of “involuntary intoxication” in which defendant did not knowingly or purposely ingest alcohol or drugs.

Under PC 647(f), a “public place” is a place that is open and accessible to anyone who wishes to go there, not including a person’s home. Examples of this include walking down a public street, sitting in a public park, or sitting in a parked car on a public street.


A person who is convicted of public intoxication under Penal Code 647(f) can receive different punishments depending on if this is their first offense. Fines of up to $1,000 may be imposed. Defendant may also receive probation, or up to 6 months in county jail. A defendant who has three or more convictions within 12 months may be sentenced to up to 90 days in county jail. However, if the defendant promises to spend 60 days in an alcohol treatment program, probation or a suspended sentence may be available.

Closely Associated Crimes to Public Intoxication (PC 647(f))

Closely associated crimes to public intoxication (PC 647(f)) include: PC 372 public nuisance, and PC 415(1) disturbing the peace by fighting.


Involuntary Intoxication

Under PC 647(f), because the prosecutor must prove the defendant became voluntarily intoxicated, if the defendant was involuntarily intoxicated at the time he/she was in public, the defendant will have a valid defense. Examples of involuntary intoxication include: defendant’s drink was spiked; defendant was forced to drink an alcoholic or drugged beverage against his/her will; defendant was accidentally served an alcoholic beverage when he/she was under the impression it was a non-alcoholic beverage.

Not in a Public Place

If at the time of arrest defendant is not drunk in a public place, he/she cannot be found guilty of public intoxication under PC 647(f). Further, if the police find the defendant in a non-public space, and then take him/her to a public place in order to arrest him/her, defendant cannot be found guilty for being “drunk in public”.

Insufficient Evidence of Intoxication

If the police officers who encounter defendant do not properly administer tests gauging defendant’s intoxication, or if the police officer’s method of administrating the test and dealing with defendant are improper, evidence of intoxication may be excluded.

To learn more about the crime of public intoxication, of “drunk in public” laws (PC 647(f)) in California, including defenses to public intoxication, contact a California criminal defense attorney today.

CriminalDefense attorney Christopher Dorado represents defendants charged with public intoxication (PC 647(f)) in the county of San Bernardino, including the cities of Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario, Yucaipa, and more. There is no charge for initial consultations and our office offers 24/7 emergency service. 909.913.3138