PC 459 Second Degree Commercial Burglary: Law, Defense, & Consequence

Second Degree Commercial Burglary: Penal Code 459 (PC 459)
Law, Defense, & Consequences

The Law of PC 459 Commercial Burglary

The crime of commercial burglary is found at California penal code section 459, or simply PC 459. Commercial burglary is sometimes referred to as second degree burglary. PC 459, or second degree commercial burglary may be charged as a misdemeanor or as a felony in California. Whether or not the District Attorney files misdemeanor or felony commercial burglary charges depends on the several factors, including the defendant's criminal history, the sophistication of the burglary, the amount stolen, etc. (Length of possible jail time for both misdemeanor and felony commercial burglary charges under PC 459 is discussed under consequences below).

In order to prove the crime of second degree commercial burglary under PC 459 the District Attorney must prove that the defendant entered a store, building, or structure, (but not a home) with the intent to commit theft inside the store, building, or structure. The intent to commit theft must have occurred before the defendant enters the store, building, or structure in order for the district attorney to prove second degree commercial burglary.

It is important to remember that the defendant commits second degree commercial burglary under PC 459 the very instant he enters the store, building, or structure if when he enters he has the intent to commit theft therein. It doesn't matter if the defendant never actually steals anything (of course, without stealing anything there is usually very little evidence, other than a conspiracy with another person, that the defendant intended to burglarize the store, building, or structure).

The defenses to PC 459 Commercial Burglary

Probably the most common defense to a charge of second degree commercial burglary under PC 459 is insufficient evidence to prove that the defendant formed the intent to steal before he entered the store, building, or structure. This is especially true if the defendant has money or credit cards on him when he is apprehended inside a shopping store (i.e. Walmart, Costco, Target, KMart, Mall, Fair, Supermarket, etc.).

The fact that a person accidentally walks out of a store with merchandise does not equal commercial burglary. The defendant must have intended to steal property from the store before he enters the store. Even if the defendant forms the intent to steal merchandise after he is in the store the defendant will not have committed commercial burglary because he did not form the intent to steal until after he was in the store.

Another popular defense to second degree commercial burglary under PC 459 includes the defense of necessity. The defense of necessity may apply where the defendant is caught stealing medicine that he needs and he doesn't have the funds to pay for them or where the defendant's primary concern is seeking emergency medical attention.

It's important to remember that if you are apprehended for a violation of second degree commercial burglary under PC 459 in California you should absolutely not speak to store authorities or the police. In most cases, the defendant's own statements become the best evidence against the defendant. This is because it is often times difficult to determine when the defendant formed the intent to steal merchandise or property (whether before he entered the store or after he entered the store) without the defendant's own statements. Of course, if the defendant has no money on him at the time he is apprehended for second degree commercial burglary, or if he has a criminal history of second degree commercial burglary, if could be more difficult to defend against PC 459 charges even if the defendant has not made any statements.

Other defenses may apply to a charge of second degree commercial burglary under PC 459, but insufficient evidence to prove intent to commit theft (due to common absent mindedness when leaving a store before paying for merchandise), the timing of intent to commit theft (whether before or after entering a store, building, or structure), and necessity, are the most common defenses.

Another defense to second degree commercial burglary under PC 459 include a statute of limitation defense. This is a very unusual defense to PC 459 charges but technically it does apply. Basically, if the District Attorney waits more than a year to file misdemeanor PC 459 charges, or more than three years to file felony PC 459 charges then the judge will dismiss the case before the charges are even read against the defendant. This is because there is a time limit on how long the District Attorney has to file charges of PC 459 against a defendant in California.

The Consequences of PC 459 Commercial Burglary

When second degree commercial burglary under PC 459 is charged as misdemeanor the defendant may face up to one year in jail. When the District Attorney has charged second degree commercial burglary under PC 459 as a felony the defendant may face up to three years in prison.

Second degree commercial burglary under PC 459 is considered an "1170h" crime, which means that the defendant may serve all of his possible jail or prison sentence at a local county jail. In addition, if the defendant is ordered to serve any jail time at all his sentence will be reduced by one day for every day he is in custody for "good behavior." This is commonly known as 50% credit, or day-for-day credit.

In many cases it may be possible to reduce the jail time that a defendant is facing through a plea bargain, commonly known as a negotiated plea. In other cases, it may be possible to actually change the charge to a lesser charge so that the defendant can plead not guilty or no contest to a lesser criminal charge. Finally, in some cases, it may be possible to reduce the charge and the amount of jail time that the defendant is facing under PC 459 charges.

With respect to jail time, often times the defendant can face any jail sentence under house arrest or work release (this depends on the the defendant's criminal history and the facts of the case).

In addition to possible jail time for second degree commercial burglary charges under PC 459, if found guilty, the defendant will very likely be ordered to pay restitution (an amount require to restore the losses incurred by the victim, store, etc.). Furthermore, PC 459 convictions are considered convictions to moral turpitude crimes (bad intent crimes), which means that the defendant could face possible professional license restrictions (such as doctors, dentists, lawyers, etc.), and persons who are not citizens of the United States may face possible deportation from the U.S.

Other penalties for second degree commercial burglary charges under PC 459, include fine, stay away order, probation terms, felony probation visits to home or work by probation officers, and more.

Prior Convictions of second degree commercial burglary under PC 459 remedies

The good news is that second degree commercial burglary convictions under PC 459 are almost always subject to expungement of criminal records. All misdemeanor PC 459 burglary convictions and most felony PC 459 burglary conviction are capable of being expunged (unless the defendant served more than a year for a felony conviction of PC 459 burglary). Where the defendant served more than a year for a second degree commercial burglary conviction under PC 459 there is a possibility that the defendant may have the conviction pardoned (cleared from his criminal record).

The other good news is that second degree commercial burglary is not considered a strike under California Three Strikes Law. In addition, the charge of both misdemeanor and felony second degree commercial burglary under PC 459 is not considered a serious or violent felony under California law.

If you or a loved one is charged with commercial burglary under PC 459, contact criminal defense attorney Christopher Doado without delay. Attorney Dorado will patiently explain your rights, possible defenses, and options. 100% of attorney Dorado's practice is dedicated to criminal defense and initial in-office consultations are provided at no cost to the accused. In many cases attorney Dorado can represent you without the need for you to attend court.

Call today for a free consultation concerning PC 459 second degree commercial burglary charges in California. Thank you for visiting.

Criminal Defense Lawyers

909.913.3138

To learn more about Commercial Burglary charges under PC 459, or criminal defense and procedure in general, please visit our website at http://www.CriminalDefense909.com  Thank you.
PC 459 Second Degree Commercial Burglary

PC 484 Theft Laws & Defenses / California Criminal Defense Attorney Penal Code 484-487

California Theft Law Under PC 484(a)

California theft law, defenses, and consequences

There are many types of criminal theft charges in California. By far the most common theft charge is found at California Penal Code Section 484(a).

To be found guilty of PC 484(a), the District Attorney must prove that the defendant took property that was not his and that when he took the property it was with the intent to permanently the true owner of the property.  

In order for the crime of theft under PC 484(a) to be complete the defendant must have moved the property at least some distance but that distance can be very small. For example, a defendant who takes property off a shelf in a department store and puts it in his jacket with the intent to permanently deprive the store owner of the property is guilty of theft under PC 484(a) even if the defendant is apprehended immediately after removing the stolen item from the department store shelf.

Furthermore, in order for the crime of theft under PC 484(a) to be complete the defendant must have intended to permanently deprive the true owner of the property. For example, if a defendant borrows his neighbors lawn mower without permission but he intends to return the lawn mower after mowing his lawn then theft under PC 484(a) is not a valid charge because the defendant never intended to permanently deprive the owner of the lawn mower.

PC 484(a) may be classified as either an infraction (where less than $50  is stolen under PC 484(a)/490.5), a misdemeanor (where under $400  is stolen), or as a felony (where more than $400 is stolen).

When PC 484(a) is charged as an infraction under PC 484(a)/490.5, the defendant is usually ordered to repay the market value of the stolen property or the restocking value where the property is recovered. When PC 484(a) is charged as a misdemeanor the defendant faces up to 180 days in jail. When PC 484(a) is charged as a felony the defendant faces up to 3 years in prison.  

Consequences for theft conviction under PC 484(a)

PC 484(a) is considered an "1170h" crime, which means that the defendant may serve any jail sentence in a local county jail as opposed to a California state prison. In addition, PC 484(a) is not considered a serious or violent crime in California and therefore the defendant is entitled to "day-for-day" credit, or 50% credit (this means that for every day the defendant serves in jail he receives credit for two days if he serves his time without bad behavior).

In addition to jail, if found guilty of theft under PC 484(a) the defendant will likely be placed on probation, ordered to pay fines or restitution, ordered to stay away from certain people or shopping areas, and more.

Other collateral consequences for convictions of theft under PC 484(a) include possible loss of professional license (such as Medical, Law, Dentistry, Nursing, etc.), possible immigration consequences (for non-U.S. citizens), possible civil lawsuits, possible family law legal problems, and more.

Note: Theft under PC 484(a) is considered a "moral turpitude" crime and a guilty plea, or a finding of guilty after a jury trial, will lead to adverse consequences for immigration status and defendant's who hold professional or occupational licenses.

Defenses to theft charges under PC 484(a)

Common defenses to theft charges under PC 484(a) include, but are not limited to, lack of intent to permanently deprive the true owner of the property (for example, taking a vehicle for a joyride or taking any property with the intent to return the property or pay for it later), insufficient evidence as to identity of the defendant, entrapment, necessity, reasonable belief that the true owner of the property gave consent to use, borrow, or have the property, insanity, and mistake of fact (as to whom actually owns the property).

If a defendant is charged with theft under PC 484(a) the first thing he or she should do is contact a qualified and experienced criminal defense attorney without delay. In many cases, the defendant does not need to appear in court as his attorney may appear for him on misdemeanor PC 484(a) criminal charges. 

Contact criminal defense attorney Christopher Dorado today for a free consultation if you or a loved one is charged with theft under PC 484(a). 100% of attorney Dorado's practice is dedicated to criminal defense and our office is available for advice 7 days a week.

Closely related crimes to theft under PC 484(a) include:

PC 211 Robbery, PC 368 Theft from Elders, PC 530.5 Identity Theft, PC 459 Burglary, PC 503 Embezzlement, PC 596(A) Receipt of Stolen Property, VC 10851(a) Vehicle Theft, W&I 10980 Welfare Fraud, PC 484(A)/490.5 Petty Theft, PC 215(a) Carjacking, PC 666(a) Petty Theft with Priors.

Violation of Probation & California Law by Criminal Defense Attorney

California Violation of Probation Consequences PC 1203

Probation violations in California can lead to very serious criminal consequences. The authority to grant probation and availability of being placed on probation is found California penal code section 1203.

The term probation means that your sentence for an underlying criminal conviction is suspended or placed on hold. This suspension of "execution of sentence" means that the judge will hold off on sentencing the defendant so long as the defendant completes a series of promises. 

Typical probation terms include violate no law, pay fines, serve a jail sentence, restraining orders, attend classes (such as DUI, child abuse, AA, domestic violence, etc.), register with local authorities (such as a sex offender, drug offender, arsonist, gang member, etc.).

The most confusing part of probation is that a defendant can be placed on probation and still be ordered to go to jail; however, remember that the probation requirement (or term of probation) to attend jail (whatever the amount of jail time is ordered) is less than what the defendant would have served if he had not been placed on probation and was instead sentenced to jail on the underlying crime. (a little confusing, I know:).

When a defendant violates his or her probation he does so either "technically" or "substantively." A "technical violation of probation means that the defendant didn't do something he was ordered to do as a term of probation, but whatever it was that the defendant did does not amount to a new crime. For example: not paying a fine, not turning himself into jail, not signing up for an electronic bracelet, etc., are all examples of "technical" violations of probation.

A "substantive" violation of probation means the defendant committed a new crime. For example: While on probation for DUI the defendant substantively violates his probation by being arrested for a new DUI. The important distinction here is that "substantive" violations of probation are treated more harshly by prosecutors and judges than "technical" violations of probation. (not to mention the defendant is facing the new criminal charges on the new crime that lead to the violation of probation).

How much jail time can I get for violation of probation?

How much jail time a defendant might receive if it is proved that he or she violated probation depends on the underlying crime that lead to the probation sentence in the first place. For example: If the defendant was facing three years on a felony DUI charge, but instead was placed on probation with an order to serve sixty days, the defendant will face up to three years on the underlying DUI charge if he violates probation (with credit for the sixty days of course).

A defendant may be placed on probation for misdemeanor charges and most felony charges in California. Note: Some serious and violent felonies are not eligible for probation sentences without good cause and under unusual circumstances. 

For misdemeanor probation violations the defendant can usually have a criminal defense attorney appear for him or her to explain the reasons for the violations. A criminal defense attorney can often times get the defendant reinstated on the original terms and conditions of probation if there have not been too many reinstatements in the past (this assumes a "technical" probation violation). Of course, if the defendant violated a law and the violation of law lead to the probation violation then the criminal defense attorney will have to deal with the new criminal charge as well. 

For felony violation of probation charges the defendant will usually have a "no bail" warrant and he or she will be fighting the violation of probation criminal charges from jail (at least until a criminal defense attorney establishes a bail amount after the first hearing known as a Vicker's Hearing).

It's easy to violate probation when a defendant can not keep up with fines, classes, etc., but as this criminal defense attorney was quickly reminded by a judge. He [the judge] can "easily fix the problem by revoking the defendant's probation and sentencing him or her on the underlying criminal charge." 

When the defendant violates his or her probation the judge or the District Attorney will generally allow reinstatement of probation on the same terms and conditions 'but with some modifications' such as more jail time, more fines, more classes, etc.

When the defendant violates his or her probation it is almost always beneficial for the defendant to get reinstated right away (this is for a "technical" violation of probation). This is because the judge can usually understand that a person missed a class (such as a DUI class), forgot to pay a fine, etc. But the judge and the prosecutors usually don't understand when the defendant waits months before returning to court after missing the class or paying the fine. 

For "substantive" violations of probation the defendant should never attempt to proceed to court without an attorney. For these types of violations of probation a criminal defense attorney should be contacted without delay.

Can I have my probation terms changed?

After a defendant is placed on probation it may be possible in California to have the probation terms changed or modified. It may also be possible to reduce the length of probation. For example: changing the end date for DUI classes to be completed by, or shortening the number of years a person is placed on probation.

What does informal probation, summary probation, and misdemeanor probation mean?

The terms summary probation, informal probation, and misdemeanor probation all mean the same thing. It simply means that the defendant is on probation with the court and that the defendant does not have a probation officer. 

Felony probation is when the defendant commits a felony and he or she is placed on probation (as opposed to being directly sentenced to jail or prison). Felony probation may have terms such as "serve jail time" just like misdemeanor probation. The big difference between felony and misdemeanor probation is that under felony probation the defendant has a probation officer who comes to check on the defendant while the defendant is on felony probation. Sometimes the defendant, while on felony probation, must check into the probation office and regularly speak to his or her probation officer. The felony probation officer can drug test the defendant and can generally take the defendant into custody if the felony probation officer finds that the defendant is in violation of his or her probation terms.

What happens if my probation is revoked?

After a formal hearing to determine whether or not the defendant violated his or her probation (known as a Vicker's Hearing) the judge will make a decision (not a jury) whether or not the defendant violated his or her probation. When the judge is making this decision he or she will use the "preponderance of evidence" standard. Which means that if the judge decides more likely than not that the defendant violated his probation the judge is going to find the defendant guilty. The judge does not use the "beyond a reasonable doubt" standard used by juries when the judge is determining whether or not the defendant violated his or her probation.

If the judge finds that the defendant violated his or her probation (after a formal Vicker's hearing or after the defendant admits guilt) the judge will sentence the defendant. The judge will sentence the defendant up to the maximum jail sentence allowed under the law for the underlying crime (the judge doesn't have to sentence the maximum but he or she can if the judge finds aggravating circumstances). If the judge finds mitigating circumstances at sentencing for a violation of probation the judge can reinstate the defendant on probation with modified terms or he can sentence the defendant to the minimum amount of jail time under the law and according to the underlying crime (every crime is difference with respect to how much jail or prison time a defendant may face).

Do I get credit for the jail time I already served if I violate my probation?

Yes. For example, if the defendant was placed on probation and orderd to served 100 days, and the underlying crime carried a one year maximum sentence, then the defendant can only be sentenced up to one year WITH CREDIT for the 100 days if the defendant is found to be in violation of probation. Of course, if the defendant never served his time on the underlying case then obviously he will not get credit for the days he was ordered to serve but never actually served.

What happens if I am found in violation of probation and the judge sentences me to jail or prison?

If the defendant admits his guilt, or if he is found guilty of being in violation of probation, after a formal Vicker's hearing the defendant may be sentenced to jail or prison by the judge (judge doesn't have to sentence the defendant to prison or jail but he or she will have that option after a finding of guilt to a violation of probation). 

IF the judge sentences the defendant to jail or prison for a violation of probation the defendant will no longer be on probation (remember that probation is in lieu of sentencing on the underlying crime and I totally understand that this point is a little confusing:). Instead, the defendant will be placed on parole (the subject on parole and parole violations is not contained in this blogpost; however, be aware that there is a difference between probation and parole in California. Parole is a period of time after the defendant is released from PRISON or "COUNTY PRISON" after serving his or her felony sentence.  

If the defendant was sentenced on a misdemeanor violation of probation then the defendant will not be on probation after serving his or her sentence. There is no parole period after a misdemeanor sentence.

Can I leave the state if I am on probation?

For informal probation, summary probation, and misdemeanor probation (all mean the same thing) the defendant is rarely prohibited from leaving the state of California (but the terms of probation can include a travel restriction in certain cases); however, in felony probation cases, the defendant must get permission from the probation officer in California AND the probation department of the state or area where the defendant intends to visit. The defendant may permanently change his or her probation location if the defendant is moving BUT the defendant again must get permission from the probation department AND the court. The process for moving the defendant's probation to another state or county requires forms from the probation department (who will usually file the forms on your behalf with the court and the receiving probation departments).

What is the court procedure if I violate probation in California?

What happens to the defendant when he or she violates probation depends on several factors. For felony violations of probation, the defendant will have a court hearing within a reasonable time of his or her arrest on the violation of probation charge. At the hearing the defendant may request a Vicker's Hearing wherein he or she can defend against the probation violation charges. This is always done through a criminal defense attorney and the defendant should never proceed on a felony probation violation hearing without a criminal defense attorney. For misdemeanor violations of probation the defendant will usually be cited if he or she is pulled over by the police. The citation will set the court date and before the court date the defendant should seek the advice of a criminal defense attorney (sometimes the defendant will be taken into custody on a misdemeanor warrant for violation of probation charges but it is not common).

In either case of felony or misdemeanor probation violations, the court sends notice to relevant law enforcement and other government agencies of the fact that the defendant has a warrant for his or her arrest. These government agencies include professional licensing agencies and the DMV (the DMV will place a hold on the defendant's license for violation of probation where the underlying crime involved a vehicle).

Can the police search me without consent while I'm on probation?

In felony cases, the defendant almost always gives up his or her Fourth Amendment Rights against illegal search and seizure, which means the probation officers and other law enforcement officers do not need to get your permission to search you while your on probation. This include a search of your home (probation officers usually just show up at the defendant's home request to enter; if the defendant objects he will be found to be in violation of probation as he did not cooperate with the probation officers). For misdemeanor probation, the defendant rarely gives up his or her Constitutional Rights against unreasonable searches and seizures, which means that law enforcement does not have the right to search the probationer while he or she is on misdemeanor probation (in most cases).

How do I get a new probation officer?

For defendants who are on felony probation, AKA "probationers," the defendant may request a new probation officer when the defendant feels that the probation officer is being arbitrary or capricious about how he monitors the probationer. In most cases, the probation officer will object without a modification by court order. The reality is that the defendant may have to file a modification of probation motion with the court to change the probation officer.

What should I do if I violated my probation in California?

If you have violated your probation in California, either by not doing what you were supposed to do according to your probation terms or by committing a new crimes, you should contact a criminal defense attorney with experience in violation of probation matters.

Criminal Defense Attorney Christopher Dorado is an experienced and aggressive criminal defense attorney. 100% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are provided at no cost to the accused.  Attorney Dorado practices criminal defense in the counties of San Bernardino & Riverside, including the cities of Rancho Cucamonga, Fontana, Chino, Upland, Redlands, Ontario, Victorville, Hesperia, Yucaipa, Riverside, Beaumont, Moreno Valley, Appley Valley, and more. Call today!

909.913.3138

Please visit our criminal defense websites for PC 1203 Probation Violations, DUI charges, Sex Crimes, and Criminal Defense in general.

Criminal Defense Attorneys 909.913.3138 Free Consultations Inland Empire Lawyers

Inland Empire Criminal Defense Attorneys serving San Bernardino & Riverside County

Criminal defense attorney Christopher Dorado and his crew are aggressive and experienced in handling all misdemeanor and felony charges in California. 100% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are provided at no cost to the defendant.

Not all criminal defense attorneys are created equal. Attorney Dorado has aggressively and successfully defended against all criminal charges, including sex crimes, DUI, theft crimes, white-collared crimes, arson, battery, carjacking, rape, statutory rape, prostitution, murder, manslaughter, assault, criminal threats, pimping, receipt of stolen property, robbery, evasion, violations of probation and more.

In addition, attorney Dorado has a successful trial record in major felonies such as child molestation, rape, kidnapping, manslaughter, fraud, sexual battery, and more.

Attorney Dorado's staff routinely engages close outside resources, including investigators, consultants in psychology, medical examinations, forensics, bail bondmen, and Internet forensics.

Attorney Dorado can represent you in many cases without the need for the defendant to appear in court. In addition, attorney Dorado can make arrangements to visit the defendant while the defendant is in custody.

If you have been charged with a crime in San Bernardino or Riverside county contact criminal defense attorney Christopher Dorado today. Attorney Dorado will patiently review your case, explain your Rights and advise the defendant of his or her defense options.

Criminal defense attorney represents defendants charged with all misdemeanors and felonies (including complex felonies and Three Strikes Crimes) in all of the following California cities: Adelanto, Heperia, Victorville, Highland, San Bernardino, Redlands, Yucaipa, Fontana, Rancho Cucamonga, Ontario, Upland, Montclair, Moreno Valley, Riverisde, Beaumont, Apple Valley, Chino, Rialto, Colton, and more.

Call Criminal Defense Attorney Christopher Dorado today 909.913.3138

PC 597 Animal Cruelty & Abuse: Criminal Law & Defense Attorney California

California Animal Cruelty & Abuse: 

PC 597, PC 599, & PC 600

The law on the crime of animal cruelty, neglect, or abuse is found at California Penal Code Section 597. 

Under PC 597, any person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cuelty kills and animal, or causes or procures any animal to be so over driven, tormented, deprived of necessary sustenance, drink, shelter, or having the charge of custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or ho drives, rides, or otherwise uses the animal when unfit for labor, is, for each offense, guilty o a crime. 

As you can see from the long definition of animal cruelty under PC 597 there are many ways that a defendant may be charged with the crime. PC 597 may be charged as a misdemeanor or a felony depending on the facts of the case and the defendant's criminal history.

If found guilty of animal cruelty under PC 597 the defendant may face up to a year in jail (for misdemeanor PC 597 charges), or up to three years in prison (for felony PC 597 charges).

In many cases it may be possible to have PC 597 charges reduced or dismissed depending on the facts of each case. In other cases, it may be possible to reduce the harsh penalties associated with PC 597 charges even where the charges are not reduced or where the case is not completely dismissed.

Defenses to animal cruelty charges under PC 597 include, statute of limitations (1 years for misdemeanor PC 597 charges and 3 years for felony PC 597 charges), insufficient evidence to prove the charges, and improper police procedure (such as taking statements from the defendant without reading the defendant's Rights or securing property from the defendant's home without consent or a warrant).

In addition to the penalties described above, if found guilty of animal cruelty under PC 597, the defendant may be placed on probation, be made to pay hefty fines, be restrained from owning animals, face professional or occupational license restriction, suspension, or denial, or face immigration consequences (for non-U.S. citizens).

If you or a loved one is charged with animal cruelty, abuse, or neglect under PC 597, contact criminal defense attorney Christopher Dorado today. Attorney Dorado will patiently describe the law behind PC 597, inform you of your Rights, and discuss your defense options. !00% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are provided at no cost to the accused.

Call today! 909.913.3138

Closely associated charges to Animal Cruelty, abuse, or neglect under PC 597, include:  

PC 597(f) Sexual Abuse of Animal; PC 597(a) Kill, Main, or Abuse an Animal; PC 597(b) Cruelty to an animal; PC 597f Animal Neglect; PC 597j(a) Own or Possess or Train animal with intent of fighting; PC 597.5(b) knowingly attend a dog fight; PC 597.7(a) Leave animal in vehicle; PC 597b(c) Fight animal or cock with prior; PC 597b(b) Fight cock or worry/injure cock; PC 600 Harm peace officer's horse or dog causing injury.

PC 594(a) Vandalism Law & Defense Criminal Defense Attorney California

California Penal Code Section 594(a) Vandalism Law & Criminal Defense

The law on the crime of vandalism is found at California penal code 594(a). In order for the District Attorney to prove that the defendant committed vandalism under PC 594(a) he must prove that the defendant maliciously (intentionally) destroyed or damaged the land or personal property of another person.

Vandalism Under PC 594(a) may be charged as a misdemeanor or as a felony in California.  The two most important factors in deciding whether vandalism should be charged as a misdemeanor or as a felony are 1) the defendant's criminal history and 2) the amount of damage or destroyed property caused by the defendant's vandalism. Vandalism with property damage under $400 is almost always charged as a misdemeanor.

Under PC 594(a), a misdemeanor vandalism charge carries up to a 1 year jail term and a felony vandalism charge carries up to a 3 year jail term.

In addition to any possible jail commitment, if the defendant is found guilty of vandalism under PC 594(a), he or she will be made to pay restitution to the victim. The defendant may also be placed on probation, fined, suffer lost professional or occupational licensing, suffer lost immigration status (for non-U.S. citizens), and more.

Defenses to vandalism charges under PC 594(a) include insufficient evidence to prove either the crime occurred or the value of the damaged or destroyed property. Also, the statue of limitations (time that the District Attorney must file the vandalism charges before the judge will dismiss the case as untimely filed) is 1 year for misdemeanor vandalism charge and 3 years for felony vandalism charges.

If you or a loved one is charged with vandalism under PC 594(a), contact criminal defense attorney Christopher Dorado today. Attorney Dorado dedicates 100% of his practice to criminal defense and initial consultations are provided at no cost to the defendant. Attorney Dorado will inform you of your Rights, defense options, and the law behind vandalism charged under PC 594(a). Call today for a free consultation. 909.913.3138

Closely associated crimes to vandalism under PC 594(a) include:

PC 594(b)(1) Vandalism; PC 594(b)(2)(A) Vandalism; PC 594((b)(2)(B) Vandalism with prior; PC 594.1(b) Purchase aerosol container of paint by minor; PC 594.1(d) Carrying of aerosol paint container without authorization; PC 594.2 Possession of graffiti tools; PC 594.3 Vandalism of a place of worship or cemetery; PC 594.7 Vandalism with prior; 

To learn more about criminal defense in California, please visit criminal defense, sex crimes defense, or DUI defense. Thank you.

Criminal Defense Attorney Moreno Valley CA. Free Consultations

Criminal Defense Attorney Serving Moreno Valley California

Moreno Valley, California

Criminal Defense Attorney Christopher Dorado is an aggressive and experienced Criminal Defense Attorney serving the city of Moreno Valley, CA. 100% of attorney Dorado practice is dedicated to Criminal Defense and initial consultations are provided at no cost to the accused and his or her family.

Attorney Dorado is experienced in criminal trials with an impressive victory win rate. Attorney Dorado is also experienced with Defendants who have collateral issues when they are charged with a misdemeanor or felony in Moreno Valley. Those collateral issues include professional or occupational licensing issues, immigration issues, family law related matters, DMV issues associated with criminal charges, and more. 

If you have been charged with a misdemeanor or felony in the city of Moreno Valley California, including complex felonies, theft crimes, drug crimes, domestic violence, tax crimes, gang crimes, murder, battery, vehicle offenses, sex crimes, DUI, arson, vandalism, or Three Strikes Offenses, contact criminal defense attorney Christopher Dorado today.

Attorney Dorado will explain your rights, defense options, and the law behind your specific criminal charges. Our office is conveniently located in Redlands, CA. To learn more about criminal defense attorneys in Moreno Valley please visit Moreno Valley Criminal Defense Attorneys, Moreno Valley DUI Attorneys, or Moreno Valley Sex Crimes Attorneys, today. 909.913.3138

909.913.3138

PC 422 Criminal Threats Law & Defense California Criminal Defense Attorney

California Penal Code Section 422 "Criminal Threats" Law & Defense

The law on the crime of Criminal Threats (formerly known as Terroristic Threats) is found at California Penal Code Section 422 (PC 422).

To be found guilty of PC 422 the District Attorney must prove that the Defendant:

1) willfully threatened to kill or cause great bodily injury to the victim;

2. intended that his statement be understood as a threat;

3. made a statement that was clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out;

4. actually caused the victim to be in fear for his or her own safety or the safety of his or her immediate family;

5. caused the victim to be in fear and the victim's fear was reasonable under the circumstances of the Defendant's threat.

Criminal Threats under PC 422 may be charged as a misdemeanor or as a felony in California. When Criminal Threats under PC 422 is charges as a misdemeanor the Defendant may face up to 1 year in county jail. If Criminal Threats under PC 422 is charged as a felony the Defendant may face up to three years in state prison. 

When Criminal Threats under PC 422 is charged as a felony the Defendant must spend his or her time in state prison if any prison sentence is imposed (no county jail option for Criminal Threats charged under felony PC 422). 

When Criminal Threats under PC 422 is charged as a felony the conviction is a "Strike" under California "Three Strikes Law." 

Whether the District Attorney charges a Criminal Threats charge under PC 422 as a misdemeanor or as a felony depends on the facts surrounding the case and the Defendant's criminal history. 

In some cases of felony Criminal Threats under PC 422 it may be possible to have the judge reduce the charge to misdemeanor PC 422 even if the District Attorney is not so willing.

Defenses to Criminal Threats under PC 422 include, statute of limitations (3 years), insufficient evidence to prove the victim was placed in reasonable fear, insufficient evidence that the Defendant intended his threats to be communicated to the victim, improper police procedure and illegal evidence (this is usually the case where the victim records the Defendant's statements without Court permission, though this defense has limitations in many cases).

If you have been charged with Criminal Threats under PC 422, contact criminal defense attorney Christopher Dorado today for a free consultation. Attorney Dorado dedicates 100% of his practice to criminal defense and initial consultations are provided at no cost to the accused. 

To learn more about Criminal Threats charges as PC 422 in California please visit our Criminal Threats webpage at CriminalDefense909.com. Call today! 909.913.3138

To learn more about sex crimes criminal defense or DUI criminal Defense please visit our other websites. Thank you.

PC 273.5(f)(1) Inflict Corporal Injury to Spouse or Cohabitant Law & Defense

PC 273.5(f)(1) Inflict Corporal Injury to Spouse or Cohabitant

California Domestic Violence Law & Defense

California domestic violence laws are found in several sections of the California penal code. Misdemeanor battery on a spouse or cohabitant is found at PC 243(e)(1), Inflicting Corporal Injury to Spouse or Cohabitant is found at PC 273.5(a), and Inflicting Corporal Injury to Spouse or Cohabitant with Prior is found at PC 273.5(f)(1). This page is dedicated to a short discussion of the law and defense associated with the latter, PC 273.5(f)(1) Corporal Injury to Spouse or Cohabitant with Prior.

To prove that the defendant is guilty of PC 273.5(f)(1) the district attorney must prove that the victim was either the spouse, former spouse, cohabitant, or former cohabitant, or the defendant. In addition, the district attorney will have to prove that the defendant inflicted an injury which is noticeable (soft tissue injury and unseen injuries are insufficient to prove PC 273.5(f)(1) charges); however, the victim does not need to suffer or pain and the injury does not need to be anything more than a simple bruise for PC 273.5(f)(1) convictions. Finally, the district attorney will need to show that the defendant has suffered a prior conviction for domestic violence under either PC 273.5(a), or PC 273.5(f)(1).

If found guilty of inflicting corporal injury to a spouse or cohabitant under PC 273.5(f)(1) the defendant may face up to five years in a state prison. PC 273.5(f)(1) is not a "jail sentence" meaning that if the defendant is found guilty and ordered to serve any time in a correctional facility in California that facility will be a California state prison (not a local jail); this is true even if the defendant is ordered to serve less than a year in custody.

PC 273.5(f)(1) is not a "strike" under California Three Strikes law and if convicted of the charges the defendant is entitled to day-for-day credit for good behavior in prison. 

In addition to any possible prison sentence, if convicted of PC 273.5(f)(1), the defendant may suffer fines, probation or parole sentences, domestic violence restraining orders, loss of occupational or professional licencing, immigration problems (for non-U.S. citizens), CPS involvement (where children are present at the time of the domestic violence), family law legal problems, and more.

Defenses to inflicting corporal injury to a spouse or cohabitant with prior under PC 273.5(f)(1) includes, no evidence of prior domestic violence conviction within 10 years of the new PC 273.5(f)(1) charges, defense of others, improper police procedures which leads to the omission of certain evidence, unwilling and unidentifiable witness against the defendant, self-defense, and more.

However, the fact that the victim does not want to be a witness against the defendant in a PC 273.5(f)(1) case is not a defense. In fact, prosecutors are generally used to the fact that many victims of domestic violence either change their mind about prosecution or attempt to change their initial statements about being a victim. 

If you or a love one is charged with with inflicting corporal injury to a spouse or cohabitant with prior under PC 273.5(f)(1), contact domestic violence criminal defense attorney Christopher Dorado today. Attorney Dorado will explain your rights, defense options, and the law regarding PC 273.5(f)(1). 100% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are provided at no cost to the accused.

Call today 909.913.3138

Closely Associated Crimes to PC 273.5(f)(1) include:

PC 273.5(a) Inflict Corporal Injury to Spouse or Cohabitant; PC 243(e)(1) Battery to Spouse or Cohabitant.

PC 273.5(a) Corporal Injury to Spouse or Cohabitant in California

PC 273.5(a) Corporal Injury to Spouse or Cohabitant

California Domestic Violence Crimes & Defense

The most common domestic violence criminal charge in California is found at Penal Code Section 273.5(a). To be found guilty of PC 273.5(a) the prosecutor must prove that the defendant willfully inflicted an injury to his or her spouse or cohabitant, which resulted in traumatic condition.

For purposes of PC 273.5(a) a spouse may be a current or former spouse and a cohabitant is a person who is unrelated to the defendant. Also, according to PC 273.5(a), a cohabitant may be proved by long-term living together, sharing of expenses or income, persons holding themselves out to be in a relationship, etc.

A "traumatic condition" as used in PC 273.5(a) means a wound or bodily injury, even a minor injury, which was directly caused by the defendant. Soft tissue injuries and unapparent injuries will not suffice to charge PC 273.5(a) against the defendant. In the case of unapparent injury to spouse or cohabitant the district attorney will usually file misdemeanor domestic violence charges under PC 243(e)(1) as an alternative.

PC 273.5(a) may be filed as a misdemeanor or a felony but the charge is almost always filed as a felony. Whether or not the district attorney files a misdemeanor or felony version of PC 273.5(a) depends on many factors, including the level of injury sustained to the victim and the criminal history of the defendant. As stated above, if there is no injury noticed on the victim in a domestic violence case the district attorney will generally file misdemeanor domestic violence charges under PC 243(e)(1). 

If found guilty of the crime of corporal injury to a spouse or cohabitant under PC 273.5(a) the defendant may face up to four years in prison (as a felony). PC 273.5(a) is not considered a "strike" according to California Three Strikes Law and if found guilty of the crime the defendant is entitled to "day for day" credit (1 day credit for every day served in prison). 

PC 273.5(a) is "prison sentence" (as distinguished from a "jail sentence"): a prison sentence must be served in a California state prison as opposed to a county jail. This is true even if the defendant ultimately serves only a short prison sentence such as a couple of months.

In addition to any possible prison sentence mentioned above, if convicted of PC 273.5(a), the defendant may be ordered to attend domestic violence batterers classes, pay enormous fines, be placed on probation (or parole after a prison sentence), have domestic violence restraining orders issued, lose his or her professional or occupational license, lose his or her immigration status (for non-U.S. citizens), restitution orders, CPS and family law legal problems, and more.

Defenses to the charge of corporal injury to a spouse or cohabitant under PC 273.5(a) include improper police procedure, insufficient evidence to prove the prosecutor's case, defense of other people (including the victim), necessity (necessary injury to prevent a greater harm), self-defense, and more. However, under PC 273.5(a), the fact that the victim changes his or her mind about "pressing charges" is not a defense to the crime. In fact, in PC 273.5(a) cases, the district attorney is always ready to deal with the fact that many victims of domestic violence have a change of heart against pressing charges against the defendant. 

Finally, PC 273.5(a) may be charged against a defendant who has a prior conviction of PC 273.5(a), but the California legislature has passed new laws which allow the district attorney to file a separate domestic charge under PC 273.5(f)(1). This new charge carries a prison sentence of up to five years (as opposed to up to four years under PC 273.5(a). 

If you or a love one is charged with domestic violence, or corporal injury to a spouse or cohabitant under PC 273.5(a), contact domestic violence criminal defense attorney Christopher Dorado today. Attorney Dorado will explain your rights, defense options, and the law regarding PC 273.5(a). 

Attorney Dorado and his crew are experienced and aggressive; 100% of attorney Dorado's practice is devoted to criminal defense and private in-office or in-jail consultations are provided at no cost to the accused.   

909.913.3138

Closely Associated Charges to PC 273.5(a) Include:

PC 243(e)(1) battery to spouse or cohabitant; PC 273.5(f)(1) Inflicting Corporal Injury to Spouse or Cohabitant; 273.6(a) Disobey a Court Order in a Domestic Violence case.

PC 243(e)(1) California Domestic Violence Law & Criminal Defense

California Domestic Violence Laws & Defense

PC 243(e)(1) Battery on Spouse or Cohabitant

There are many domestic violence statutes in California. By far the three most commonly charged domestic violence charges include PC 243(e)(1), PC 273.5(a), & PC 273.5(f)(1). This page is dedicated to the discussion of PC 243(e)(1) Misdemeanor Battery on Spouse or Cohabitant. For more information on other California domestic violence charges please see PC 273.5(a) Corporal Injury to Spouse or Cohabitant and PC 273.5(f)(1) Corporal Injury to Spouse or Cohabitant with Prior.

PC 243(e)(1) is classified as a misdemeanor in California; it is the most common domestic violence charge levied against a defendant when there is no evidence of injury on the defendant's spouse or cohabitant and where the defendant has no criminal history of domestic violence.

To prove the defendant is guilty of PC 243(e)(1) the district attorney must prove: 1) the defendant wilfully touched the spouse or cohabitant in a harmful or offensive manner, 2) the victim is either the roommate or former roommate or the spouse or ex spouse of the defendant, and 3) the defendant had no right to self-defense during the harmful or offensive touching of the victim.

A "cohabitant" under PC 243(e)(1) is defined as a person who is not of family relationship to the defendant. A parent of the defendant may also qualify as a victim of domestic violence under 243(e)(1).

The "touching" does not have to cause pain or injury to the victim as long as the touching was done in a harmful or aggressive manner. In fact, under PC 243(e)(1) the touching does not even have to be directly on the skin of the victim. For example, grabbing an object out of the hand of the victim in an angry manner may qualify as a harmful or offensive touching under PC 243(e)(1).

The most common defenses to a charge of domestic violence under PC 243(e)(1) include 1) insufficient evidence to prosecute the charge (in virtually all cases there is no evidence of injury and usually the defendant and the victim are the only witnesses to the crime, and 2) self-defense.

If found guilty of PC 243(e)(1) the defendant may face up to 1 year in jail. In addition to any possible jail time, if the defendant pleads guilty (or is found guilty) of PC 243(e)(1) the defendant will be made to pay heavy fines, attend domestic violence abuse counseling classes, be ordered to stay-away from the victim, and be placed on probation with the court. 

In addition, criminal conviction in general can lead to professional or occupational license restriction or suspension, immigration problems (for non-U.S. citizens), and family law legal problems and lawsuits.

If you or a loved one has been charged with domestic violence against a spouse or cohabitant under California PC 243(e)(1), contact criminal defense attorney Christopher Dorado today. Attorney Dorado is 100% dedicated to criminal defense and initial consultations are provided at no cost to the accused. Attorney Dorado will patiently explain your rights, your defense options, and the law behind PC 243(e)(1).

Contact Criminal Defense Attorney Christopher Dorado today. 909.913.138

Keeping a house of prostitution PC 315 California Law & Defense

California Penal Code Section 315 Keeping a house of prostitution

Law & Defense in California by experienced sex crimes criminal defense attorneys

The law on the crime of keeping a house of prostitution is found at California penal code section 315 (PC 315). If found guilty of PC 315 the defendant could face up to 180 days in jail, fines, place on probation, ordered to stay away from certain places or business practices, or any combination thereof.

Keeping a house of prostitution is to provide a place for prostitution, usually a massage parlor or a house. The person keeping the house of prostitution does not need to be a prostitute in order for PC 315 charges to be levied against the defendant. In fact, proving that any of the patrons are engaged in prostitution does not need to be proved for PC 315 charges.

In addition to the penalties described above, if found guilty of PC 315 keeping a house of prostitution, the defendant could lose his or her professional or occupational license, lose his or her immigration status (for non U.S. citizens), and be made to test for HIV.

Defenses to keeping a house of prostitution charges under PC 315 are numerous but generally include entrapment, improper police investigation, insufficient circumstantial evidence, and more. It many cases it may be possible to reduce PC 315 charges to lesser charges to avoid the harsh penalties associated with the crime of keeping a house of prostitution. 

If you or a loved one has been charged with keeping a house of prostitution under PC 315 contact sex crimes criminal defense attorney Christopher Dorado today. Attorney Dorado will explain your rights and options. In many cases, Attorney Dorado can represent you without the need for you to attend court.

To learn more about sex crimes defense in California, including the crime of keeping a house of prostitution under PC 315, please visit sexcrimesattorney909.com today or call us at 909.913.3138 for a free consultation.

909.913.3138

California Oral Copulation Law & Defense: PC 288a Criminal Defense Attorney

California Oral Copulation Law & Defense: by Southern California Criminal Defense Attorney

PC 288a(b)(1) through PC 288a(k)

The crime of oral copulation in California comes in several varieties depending on the status of the victim. For example, there is a different oral copulation charge where the victim is under a certain age (minor), is disabled, is known to the defendant, is intoxicated, is confined in jail or prison, is seduced by fraud, is acted upon with force or in concert, and so on. See below for a complete list of California oral copulation penal codes and their corresponding penalties.

All oral copulation charges are found starting at California penal code section 288a. A complete list of oral copulation charges under PC 288a, with corresponding penalties, is provided below.

What is oral copulation?

Oral copulation itself is defined as any contact, no matter how slight, between the mouth of one person and sexual organ or anus of another person. Penetration is not required. Oral copulation is legal in California between two consenting adults who are both over the age of 18 and where neither of the parties is in jail or a mental institution or hospital.

Oral copulation is a crime in California only when the defendant commits oral copulation (sometimes simply known as oral sex) with someone else without the other person's permission. In order to prove the crime of oral copulation, the district attorney will usually have to show that the defendant used force, duress, menace, or fear of an immediate bodily injury to the victim (except in cases of inmate and unconscious victims).

California oral copulation charges are classified as either felonies or misdemeanors; almost all California oral copulation charges are classified as felonies and are found at PC 288a et seq. (See below for complete list of oral copulation charges and penalties).

All California oral copulation convictions require the defendant to register as a sex offender pursuant to PC 290 (California Sex Offender Registration Requirement Law). Of course, this is in addition to other possible penalties such as fines, stay away restraining orders, criminal protective orders, probation or parole, possible immigration consequences (for non-U.S. citizens), loss of professional or occupation license, and more.

Common defense to California oral copulation charges

Defenses to California oral copulation charges are as varied as the number of charges themselves and mostly depend on the circumstances of each individual case. Common defenses include: unreliable testimony of the alleged victim, no physical evidence, alibi defense, illegal or improper conduct of the police during the defendant's interrogation, and reasonable belief by the defendant that the alleged victim consented to the oral copulation (not available for oral copulation cases where the alleged victim is under age (18)). 

Note: It is not a defense to argue that the defendant and the victim were married at the time of the oral copulation.

If you have been charged with oral copulation in California, under PC 288a, or any of the oral copulation charges listed below, contact sex crimes criminal defense attorney Christopher Dorado today. Attorney Dorado is experienced in these types of cases, including successful defenses presented at trial on PC 288a charges. Attorney Dorado will competently explain your rights, defenses, and options. There is no time to waste and typically time is against the defendant in PC 288a oral copulation cases. There is no charge for consultation with the defendant or the defendant's family. Call today. 909.913.3138

Complete list of California PC 288a oral copulation charges and corresponding penalties

PC 288a(b)(1) Oral Copulation With Person Under 18 [Felony up to three years in prison or Misdemeanor where no force was used up to one year in jail and California Sex Offender Registration Required].

PC 288a(b)(2) Oral Copulation with Person Under 16 [Felony up to three years in prison and California  sex offender registration required]

PC 288a(c)(1) Oral Copulation with Person Under 14 [Felony up to eight years in prison and California sex offender registration required]

PC 288a(c)(2)(A) Oral Copulation by force [Felony up to eight years in prison and California sex offender registration required]

PC 288a(c)(2)(B) Oral Copulation w/child under 14 by force [Felony up to twelve years in prison and California sex offender registration required]

PC 288a(c)(2)(C) Oral Copulation by force 14-17 [Felony up to ten years in prison and California sex offender registration]

PC 288a(c)(3) Oral Copulation with threat of retaliation [Felony up to eight years in prison and California sex offender registration]

PC 288a(d)(1) Oral Copulation in concert [Felony up to nine years in prison and California sex offender registration]

PC 288a(d)(2) Oral Copulation w/child in concert [Felony up to fourteen years in prison and California sex offender registration]

PC 288)a(d)(3) Oral Copulation w/person w/child 14-17 in concert [Felony up to twelve years in prison and California sex offender registration]

PC 288a(e) Oral Copulation while in jail or prison [Felony up to three years in prison or misdemeanor up to one year in jail and California sex offender registration]

PC 288a(f) Oral Copulation of unconscious victim [Felony up to eight years in prison and California sex offender registration]

PC 288a(h) Oral Copulation while confined in state hospital [Felony up to three years in prison or misdemeanor up to one year in jail and California sex offender registration]

PC 288a(i) Oral Copulation of intoxicated victim [Felony up to eight years in prison and California sex offender registration]

PC 288a(j) Oral Copulation [Felony up to eight years in prison and California sex offender registration]

PC 288a(k) Oral Copulation by threat of arrest or deportation [Felony up to eight years in prison and California sex offender registration]

For more information on California PC 288a charges, oral copulation, DUI Attorney, or criminal defense attorney in general, please contact our criminal defense attorneys at 909.913.3138 today.

PC 187(a) Murder Law & Defense: California Criminal Defense Attorneys

California Murder Law & Defense

California Penal Code Section 187

In California, the crime of Murder is defined as the 1) unlawful killing of a 2) another human being with 3) malice aforethought and 4) without legal justification (Penal Code Section 187(a)). In order for the district attorney to prove murder he or she must prove all four elements listed above.

The term unlawful would seem to be unnecessary as most people consider murder to be unlawful. However, the fact that the term exists in the definition of California murder law tells us that some killings are actually lawful. These killings include self-defense, sanctioned death penalty cases, accidents, etc. Therefore, not every killing in California is considered to be unlawful.

Under PC 187(a) the term another human being means that suicides are not classified as murder because the person killing himself or herself is not killing another human being but rather themselves. However, under PC 187(a) the killing of a fetus is considered another human being in California (Some states do not consider a fetus to be a person with their murder laws).

The term Malice Aforethought is the most commonly misunderstood term and means that the killing was committed by the defendant while the defendant was in a particular mental state or state of mind (More on mental states of mind below). This may sound a little confusing at first but basically it means that, in addition to finding the other three elements of murder listed here, that the defendant had to be thinking a particular idea when the killing took place. Malice aforethought does not mean that the defendant killed with premeditation or deliberation. The terms premeditation and deliberation are used to determine the degree of murder that should be charged, i.e. first degree murder, second degree murder, etc. (more on premeditation and deliberation below).

The term without legal justification simply means that some killings are not considered to be murder because there exists a legal justification such as killings that occur in self-defense.

Malice Aforethought States of Mind

As stated above, Malice Aforethought simply means that if the district attorney is going to prove murder he or she must prove that the defendant unlawfully killed another human being without any legal justification and while the defendant operated under one of the four following states of mind during the killing:

1. Intent to kill:

Malice aforethought may be shown by specific intent to kill. This state of mind is the easiest to understand. Simply stated: if the defendant intended to kill someone, and he or she kills another person while so intending to do so, then malice aforethought is present.

When the defendant does not confess that he intended to kill another person the prosecutor will often rely on circumstantial evidence to prove the defendant's intent to murder the victim. For example: Shooting another person in the head would be circumstantial evidence to prove the defendant actually intended the victim to die even though the defendant did not confess that he intended to kill the victim.

2. Intent to commit great bodily injury (GBI):

The second way to show malice aforethought is for the prosecutor to prove that the defendant intended to severely injure another person and that the injury caused to the other person by the defendant was the cause of death. 

For example: If the defendant intended to stab another person, without intending to murder the other person, but never-the-less the other person died as a result of the stab wound, then the defendant's intent to commit great bodily injury will serve as malice aforethought.

3. Reckless Endangerment to Human Life "Malignant Heart Murder":

Simply stated, if the defendant commits some act that is subjectively reckless and dangerous to human life then the defendant will be found to have acted with malice aforethought if another person is killed by the defendant's recklessness.

For example, if the defendant shoots bullets in the air in a busy city and a person dies from one of the falling bullets then the defendant will probably be charged with murder because of the extreme recklessness of his or her conduct.

4. Murder Committed During the Commission of an Inherently Dangerous Felony: Felony Murder Rule:

The fourth way to show malice aforethought is for the prosecutor to prove the victim's death occurred during the commission of an inherently dangerous felony which was committed by the defendant.

For example: If the defendant is robbing a liquor store and the clerk of the store dies from a heart attack during the robbery then the defendant will likely be charged with murder because the death was caused by the robbery and the robbery is considered an inherently dangerous felony.

Note: malice aforethought is not found where an officer accidentally kills another human being while in pursuit of the defendant. For example, if the defendant flees from the police, and the police shoot at the defendant, and the police accidentally kill an innocent bystander, then the defendant will not be charged with murder.

Only some felonies are considered to be inherently dangerous. These felonies include Rape, Robbery, Torture, Kidnapping, Mayhem, Residential Burglary, and the like.

Remember, all four elements must be present to prove murder in California under PC 187(a): 1) Unlawful Killing, 2) of another human being, 3) with malice aforethought, and 4) without legal justification. Also remember that the Malice aforethought element may be proved in one of four ways 1) intent to kill, 2) Intent to commit great bodily injury, 3) Subjective Recklessness (Malignant Heart), or 4) a killing during the commission of an inherently dangerous felony. If any one of these elements is not proved beyond a reasonable doubt to the jury then the defendant is entitled to an acquittal on the murder charges. 

For example, if the defendant is speeding 10MPH over the limit on the freeway, and he causes an accident where somebody dies, he is not likely to be charged with murder under PC 187(a). The reason for non-murder charges in this example: even though the defendant killed another human being, killed while committing an unlawful act, and killed without any legal justification, malice aforethought can not be proved. This is because speeding is not circumstantial evidence of intent to kill, it is not evidence to prove the defendant intended to commit great bodily injury, it is not reckless conduct (maybe negligent but not subjectively reckless), and speeding is not an inherently dangerous felony. Therefore, the district attorney will not be able to prove murder in this example because he can not prove at least one of the four states of mind needed during the killing (any one of the four mental states under malice aforethought). Note: speeding 40MPH over the limit would probably be charged as murder under PC 187(a) because speeding that much over the speed limit is subjectively reckless and the district attorney could therefore prove the element of malice aforethought under malignant heart state of mind (Extreme recklessness which is subjectively dangerous to human life (see above under malignant heart murder).

Degrees of Murder under PC 187(a):

First Degree Murder under PC 187(a):

Under PC 187(a) First degree murder is murder that is premeditated and deliberate, or murder that is committed during the commission of an inherently dangerous felony (see above at felony-murder rule).

Premeditation and deliberation, in simple terms, means that the defendant intended to kill another human being and the defendant thought about killing another person before the killing. It also means that the person had time to consider the consequences of his or her actions. The formation of the defendant's intent to murder, and premeditate and deliberate the murder, can be very short; even in the span of a few seconds the defendant can form these mental state.

For example, if the defendant becomes engaged in a bar fight, and he leaves the bar to retrieve a gun from his or her vehicle with the intent to kill the other combatant, then the defendant can be charged with first degree murder when he shoots and kills the other combatant; this is because the formation of intent to kill, premeditate, and deliberate the killing, can take place over a very short period of time.    

Second Degree Murder under PC 187(a):

Second degree murder is murder that is not first degree murder (Sounds silly but its probably the best way to remember what actions constitute second degree murder). Examples of second degree murder include: Murder that occurred while the defendant only intended to commit great bodily injury (GBI murder), Watson Murder (DUI Murder), Reckless Endangerment Murder (See above at Malignant Heart murder).

Note: A "Watson Murder" is a killing that occurs while the defendant was driving under the influence of alcohol or drugs (DUI). Basically, this is similar to malignant heart murder or subjective recklessness murder. Once upon a time in California, killings that occurred while the defendant was DUI were charged as a vehicular manslaughter. Today, if a defendant drives while under the influence of drugs or alcohol and he or she kills another human being, the criminal charge is usually second degree murder (as opposed to vehicular manslaughter). This is known as a Watson Murder (named after the case that changed the law).

Murder  with Special Circumstance under PC 187(a):

Special Circumstance murder is murder which is committed under a particular circumstance. Examples include multiple murder, murder of uniformed officers, torture which leads to death, murder by bomb, murder during the commission of rape, and more. Basically, special circumstance murder is murder plus some other aggravating factor. There are many types of special circumstance murder charges, the most common special circumstance murder is where multiple victims are murdered, police officer in uniform is murdered, and murder by hate crime.

Manslaughter under PC 187(a):

Manslaughter is actually a murder that is reduced in terms of severity and sentencing due to some extenuating circumstance of the defendant, such as murder that occurred during the defendant's heat of passion, imperfect self-defense (the genuine, but unreasonable need to act in self-defense), mutual combat, etc. Manslaughter is also know as voluntary manslaughter, which means that the defendant intended to kill his or her victim but extenuating circumstances existed during the murder which should legally and equitably be considered.

Manslaughter is not usually charged as a crime. Instead, a criminal defense attorney who is defending his or her client will generally argue to a judge or jury that the defendant should not be convicted of murder but rather the crime manslaughter. 

To reduce a murder charge to manslaughter the defense will generally attempt to prove the murder took place during one of the following circumstances: 1) that the defendant killed during a heat of passion 2) that the defendant and the victim were engaged in mutual combat at the time of the victim's death, or 3) that the defendant truly, but unreasonably, believed that he needed to act in self-defense (also known as imperfect self-defense).

Involuntary Manslaughter under PC 187:

Involuntary manslaughter occurs where a defendant does not intend to murder anyone but never-the-less a person is killed as a result of the defendant's grossly negligent conduct (compare to subjective reckless conduct needed to prove malignant heart murder).

For example: Speeding in a grossly negligent manner on the freeway which leads to another person's death can be charged as involuntary manslaughter. Remember however, that if the speeding amounts to recklessness, a state of mind above gross-negligence, the defendant may be charged with malignant heart murder (see above at malignant heart murder and example).

Prison Sentence for Murder under PC 187(a)

For first degree murder under PC 187(a)

The sentence for murder under California PC 187(a) is either probation, or twenty-five years to life. Probation (no jail sentence) is only granted in very unusual cases.

Many factors are considered to determine whether or not a murder is unusual for purposes of granting probation. Some of those factors include whether the defendant has a criminal record, whether or not the defendant admitted his or her guilt, whether or not the defendant was not the person who actually acted to kill the victim, such as a co defendant situation, whether or not the murder was sophisticated, etc. (There are too many factors to list in this brief. For more information about probation sentences for murder convictions  under PC 187 contact criminal defense attorney Dorado).

For Second Degree Murder  Prison Sentence under PC 187(a)

The sentence for a conviction of murder in the second degree under PC 187(a) is either probation (see above under first degree murder for more details), or fifteen years to life in prison.

For Special Circumstances Murder Prison Sentence under PC 187(a) 

The murder sentence under PC 187(a) is either life in prison or death. Whether or not the defendant is sentenced to death is a determination that is made by the jury after the jury finds the defendant guilty of the underlying murder and the special circumstance separately.

For Manslaughter Prison Sentence Under PC 187(a)

The sentence is either probation (see above under first degree murder for more details on probation), or three, six, or eleven years in prison. The judge decides the sentence if the jury finds the defendant guilty. The judge will look at many factors to decide which sentence to impose but probably the most important factor is the defendant's criminal background.

Defenses to Murder Charges Of PC 187(a)

Common defenses to murder include self-defense, defense of others, insanity, intoxication, Heat of Passion, and alibi defense (See Defenses).

What Should I do if I Am Charged With Murder under PC 187(a):

Without delay, you, or someone on your behalf, should contact a criminal defense attorney experienced with murder charges. If your loved one is in custody on a charge of murder it is absolutely vital that you do not discuss the case with the defendant. 

Murder charges are prosecuted by very experienced prosecutors. The defendant is usually fighting his or her case from jail because bail is either denied or set at a million dollars or more. In addition, despite the fact that the defendant is entitled to have a speedy trial, a murder case usually takes many months, or even years, to proceed to trial.

For more information on the law and defense to California Murder charges, or PC 187(a), contact the Law Office of Christopher Dorado today. Attorney Christopher Dorado is an experienced criminal defense attorney who dedicates his practice exclusively to criminal defense. Attorney Dorado has experience with murder cases and murder trials. There is no charge for consultations with the defendant or the defendant's family. Call today.

909.913.3138