Crimes v. Public Peace and Welfare, generally
Category > Crimes v. Public Peace and Welfare, generally
Prostitutes have a reasonable expectation of privacy in communication during sexual encounters at a client’s residence, and defendant was properly convicted of eavesdropping for secretly videotaping the encounter.Defendant was convicted of eavesdropping on or recording a confidential communication under Penal Code section 632(a). Defendant argued that recording a call with a prostitute did not violate the statute since prostitutes have no reasonable expectation of privacy in their communications during sexual encounters at a client’s residence. The trial court properly rejected that claim in denying defendant’s motion to dismiss the eavesdropping charges on that basis.id: 27247
Minor’s admission of vandalism alone was insufficient to support the vandalism finding as there was insufficient proof of the corpus delicti.Evidence was insufficient to support the finding that the minor committed vandalism. While he admitted the act to another person, the corpus delicti of the offense must be established independently from the defendant’s admission. There was no other evidence to support the finding here and so the finding was reversed.id: 26804
Defendant could not be convicted of animal cruelty under separate subdivisions based on a single act of killing a dog.Defendant killed a dog and was convicted of two counts of animal cruelty - one count under Penal Code section 597, subd.(a) and the other under section 597, subd. (b). However, defendant could not be convicted of both counts based on the same act. The conviction under the latter provision was reversed.id: 25616
At defendant’s trial for attempting to remove a person from lawful custody, the court erred in failing to instruct on the lesser included offense of attempted rescue.Defendant attempted to prevent police from arresting a suspect during a “Black Lives Matter” demonstration. He was convicted of attempting to take another person from lawful custody by means of a riot in violation of Penal Code sections 664 and 405a. However, the trial court erroneously failed to give a sua sponte instruction on the lesser included offense of attempted rescue under section 4550.id: 25457
The trial court erred by failing to instruct that the Fish and Game Code violations required that defendant personally place the illegal crab traps.Defendant was convicted of 28 misdemeanor counts of violating the Fish and Game Code by placing commercial crab traps in protected sanctuary waters. His commercial fishing licence number was attached to the traps which the prosecutor argued was sufficient to convict him of the strict liability offenses. However, several witnesses testified another person placed the traps, and defendant was out of the country at the time. The trial court erred in failing to instruct on certain elements of sections 632 and 180.2, including the requirement that defendant must personally place the traps. The error required reversal of the convictions. However, retrial was not barred where there was evidence to support the convictions - that is, the witnesses who absolved defendant had various problems.id: 26577
Evidence was insufficient to support the conviction for attempted extortion against an employee of the food truck business who was listed in the information as the victim of the offense. Defendant approached a food truck and said he was there to collect “rent” on behalf of his gang. He left and returned five minutes later where he tapped Martinez, who was working the grill, on the back and shot him in the face when he turned around. The evidence was insufficient to support the attempted extortion as there was no evidence that defendant attempted to extort anything from Martinez, who was the only victim listed in the information. If the prosecution sought to prove the food truck business was the victim of the attempted extortion, it should have amended the information to reflect that theory.id: 24893
Evidence was insufficient to establish felony vandalism where the clean-up cost was based on an average and improperly included the cost of law enforcement.Defendant was convicted of felony vandalism under Penal Code section 594, subd.(a). However, the evidence was insufficient to show the amount of damage exceeded $400. The testimony on the issue came from a city employee who helped determine the cost of clean up, but his testimony was flawed because the use of an average clean up cost did not show the cost to clean up defendant’s graffiti. Moreover, the calculation included the cost of law enforcement, which was improper in this context.id: 26398
Two year restraining order was reversed given the lack of notice or an opportunity to be heard.In a juvenile case, the prosecution informed defense counsel at a trial setting conference that it was seeking a two year restraining order against the minor. When the case was called, the court issued the order. However, the order was reversed since the prosecution had not provided the accused with adequate notice or an opportunity to be heard before issuing the two year order.id: 25477
The detaining officer failed to comply with section 647, subd.(g), which requires a officer to take an intoxicated minor to a detox center. The minor was found to be publically intoxicated. However, the detaining officer failed to follow Penal Code section 647, subd.(g), which requires that the minor be placed in civil protective custody in a detoxification facility following an arrest. Because the officer simply took the minor home (unaware of the protective custody requirement), the finding that he violated section 647 was reversed.id: 24631
Evidence that defendant tried to disable the phone did not support the conviction for attempting to dissuade a witness by force or threats.Evidence that defendant attempted to disable the telephones in the victim’s residence was insufficient to support his conviction for attempting to dissuade a witness by force or threats under Penal Code section 136.1, subdivision (c)(1). The offense was reduced to the lesser offense of attempting to prevent a witness from reporting a crime under section 136.1, subd.(b)(1).id: 24470
A private security guard was not a “station agent” for purposes of battery against a transportation worker provision.The evidence was insufficient to support defendant’s conviction for battery against a transportation worker in violation of Penal Code section 243.3 because the victim was a private security guard contracted to ride on the train rather than a “station agent” described in the statute.id: 23851
Chemical Weapons Implementation Act could not be used to prosecute a jilted wife who used a chemical to injure her husband’s lover. The United States ratified the Convention on Chemical Weapons Treaty in 1997. The next year, Congress enacted an implementation act that made it a federal crime to possess chemical weapons and punished violators with harsh penalties. However, the act could not be used in a purely local crime involving an amateur attempt by a jilted wife to injured her husband’s lover with a substance that caused a minor skin burn.id: 23880
The trial court erred by failing to instruct on the misdemeanor offense of throwing a substance at a vehicle as a LIO of the charged felony offense.Defendant was convicted of throwing a substance at a vehicle in violation of Vehicle Code section 23110, subd.(b). However, the trial court erred by refusing to instruct on the misdemeanor offense described in section 23110, subd.(a) as a lesser included offense. The latter refers to throwing things at cars on a highway, and the former refers to “such vehicles” which means vehicles on a highway. Evidence also supported a conviction of the misdemeanor offense, and the instructional error was prejudicial where there was a reasonable probability the jury would have convicted defendant of the misdemeanor if properly instructed. id: 23842
Evidence did not support the disturbing the peace finding where the minor cursed in the presence of a teacher trying to console him after a beating.The minor was beaten up at school in front of a group of people. As a teacher tried to console him, he cursed, punched a wall and kicked a trash can. The evidence did not support the disturbing the peace finding under Penal Code section 415. The teacher was not offended and thought the minor’s cursing was a reasonable reaction. While the minor also mentioned that he was going to find a knife or a gun, the remark was not directed at the teacher and it did not amount to disturbing the peace.id: 23848
The finding that the minor contributed to the delinquency of his young girlfriend was not supported by the evidence where he merely accompanied her as she ran from her father.The 14 year-old minor was found to be in the presence of his 14 year-old runaway girlfriend on two occasions when her father had found her. The evidence was insufficient to support the finding that he contributed to the delinquency of the minor under Penal Code section 272, subd.(a)(1), simply by accompanying the girl as she ran from her father. id: 23905
Defense experts properly rebutted the presumption of the reliability of the red light cameras.Defendant was cited for failing to stop at a red light based on a red light camera photograph. Evidence Code sections 1552 and 1553 provide a presumption for the existence and content of computer information and digital images taken from them and establish preliminarily that a computer’s print function worked properly. However, these presumptions were improperly viewed as presumptions affecting the burden of proof rather than the burden of producing evidence. Defense expert testimony rebutted the presumption of reliability of the photographic evidence. The judgment was reversed.id: 23941
The trial court erred by failing to define “identifiable person” for a defendant charged with secretly filming an identifiable person. Defendant was convicted of several counts of violating Penal Code section 647, subd.(j)(2), which criminalizes the act of secretly filming or photographing an identifiable person through clothing for sexual gratification. To establish the defendant has filed an “identifiable person,” the prosecutor must show that when all the evidence is considered, it is reasonably probable that someone could recognize or identify the victim - this may include the victim herself or himself. Evidence satisfied this standard on the charged counts. Nevertheless, reversal was required where the trial court erred by failing to instruct sua sponte on the definition of “identifiable person.” id: 24023
Minor’s arrest for carrying a felt tip marker was unlawful as there was no evidence of an intent to commit vandalism, and the search of his bedroom following the arrest was therefore also unlawful.The minor was arrested for violating Penal Code section 594.2(a) which prohibits possession of a felt tip marker with the intent to commit vandalism or graffiti. However, the arrest was made without probable cause. While the minor possessed the marker there was no evidence of an intent to use it for graffiti. The search of the minor’s bedroom was the direct result of his unlawful arrest, and the evidence discovered during that unlawful search had to be suppressed as fruit of the poisonous tree.id: 23549
Defendant, who was looking at a map application on his cell phone while driving, did not violate the law that prohibits talking on a cell phone while driving. While stopped in heavy traffic, defendant used his cell phone to check a map application to find his way around the congestion. A CHP officer stopped him and issued a traffic citation for violating Vehicle Code section 23123, subd.(a). However, the statute, as written, does not prohibit all hand-held uses of a cell phone. Instead, it prohibits talking and listening on the phone unless it is in a hands-free mode. The conviction was reversed. id: 23504
The minor did not occupy the clubhouse bathroom for trespass purposes where she remained in it for a few hours. The minor was found to have committed a trespass and vandalism of a clubhouse at a condominium. The prosecution argued that she conspired with her boyfriend to commit a trespass, which would make her vicariously liable for vandalism as a natural and probable consequence of the trespass. However, the evidence did not support a trespass as the minor did not “occupy” the bathroom by remaining inside for one to several hours. Because there was no trespass she could not have entered into a conspiracy to commit the trespass . Absent a conspiracy, the prosecution could not prove she was vicariously liable for her boyfriend’s vandalism under the natural and probable consequences theory.id: 23618
Penal Code section 386, regarding the installation of defective fire protection systems requires more than ordinary negligence by a contractor.Penal Code section 386 proscribes the unlawful construction of a fire protection system in a manner that threatens the safety of an occupant in the event of a fire. The provision requires proof of the defendant’s specific intent to either 1) install a fire protection system known to be inoperable, or 2) impair the effective operation of a fire protection system. “Impair” means to make worse or diminish in a material respect. The evidence was insufficient to support the convictions in this case where defendant, a contractor, installed fire protection systems that did not comply with the fire code, but the evidence did not show the required specific intent.id: 23298
Defendant was improperly convicted of two counts of indecent exposure where he exposed himself to two people during one uninterrupted period. Defendant exposed himself to two people during a single uninterrupted incident. He could only properly be convicted of one count of indecent exposure.id: 22911
Because there was no evidence that an officer demanded proof of insurance, the evidence did not support the conviction for failing to provide such proof. The trial court erred by denying defendant’s Penal Code section 1118.1 motion for acquittal on the charge of failure to provide evidence of financial responsibility under Vehicle Code section 16028. That statute requires a failure to provide insurance upon lawful demand of such proof, and the prosecution presented no evidence that any officer demanded or requested proof of insurance.id: 22309
Past harm alone is not sufficient for issuance of a criminal protective order where there is no claim of domestic violence.In an aggravated assault case not involving domestic violence, the court may not issue a criminal protective order based solely on information concerning the underlying nature of the charged offense and without any evidence that intimidation or dissuasion of the victim or witnesses has occurred or is likely to occur.id: 22065
Defendant’s annoying telephone rants concerning customer service where he used sex-related terms, but not lewdly and did not threaten anyone did not amount to a violation of section 653m, subd.(a).Defendant was convicted of four misdemeanor counts of making annoying phone calls pursuant to Penal Code section 653m, subd.(a). He called the customer comment line of an ice cream chain using many vulgarities derived from sex-related terms, but not lewdly. He did not threaten to harm the recipient of the calls. The evidence did not support his convictions.id: 22081
The charging document violated the minor’s due process rights by omitting an important exception to the curfew law. The true finding that the minor violated the curfew ordinance was reversed where the petition alleged that she had violated the San Diego Municipal Code section rather than the corresponding ordinance, and the former omitted an important exception to the curfew law’s proscription. The charging document therefore necessarily deprived the minor of the required notice of the elements of the offense with which she was charged and violated her due process rights.id: 21711
Restraining orders issued as a condition of probation were invalid when issued during trial.After the jury had been instructed at defendant's assault trial, the prosecution asked the court to issue a restraining order preventing defendant's contact with the victims. The court issued the orders on a Judicial Council form after checking a box entitled "Order Post-trial Probation Condition" pursuant to Penal Code section 136.2. However, the orders were unauthorized since defendant had not been granted probation. If the court wanted to issue such an order before a conviction it should have issued an order under Code of Civil Procedure section 527. Moreover, good cause did not support the restraining orders under section 136.2 because that provision requires an attack on a witness or victim during an ongoing prosecution and the present victims were assaulted prior to any criminal proceedings and without an intent to interfere in such proceedings.id: 18148
A horse is not a mischievous animal for purposes of the provision prohibiting such animals from roaming at large.Defendant ranch corporation and its president were charged with willfully allowing a mischievous animal to roam at large with the result that it kills a human being (Penal Code section 399). A horse that escaped from the ranch had wandered onto a highway and collided with a car, killing the passenger. However, a horse is not a mischievous animal within the meaning of section 399.id: 10485
Minor's trespassing on school property finding was reversed for insufficient evidence that he was sent a notice of suspension by certified mail.The minor was found to have trespassed on school property following a suspension from school, in violation of Penal Code section 626.2. However, the order finding the charge to be true was reversed as there was insufficient evidence of service of the notice of suspension by certified or registered mail, as the statute requires.id: 18820
Evidence of threat to extort money from a woman if she worked as a prostitute in the future was insufficient to support the attempted extortion conviction.Defendant was convicted of attempted extortion. However, the evidence showed defendant threatened to extort money from a woman if she returned to working as a prostitute in the future. The conversation showed the preparation stage of a possible future crime, and did not establish the crime of attempted extortion.id: 17768
Evidence did not support the finding that the minor violated a local ordinance which prohibits publicizing a gang where the minor was simply standing on the sidewalk talking with another gang member.The evidence was insufficient to show the minor had loitered with the intent to publicize a street gang within the meaning of L.A. County Code section 13.44.010. The minor was simply standing on the sidewalk talking to another gang member. There was no report of trouble. The officer did not testify that the youths were dressed in gang attire, throwing gang signs or otherwise attempting to intimidate others or publicize their gang.id: 17986
The hate crime statute is not implicitly exempted from the operation of section 654.The minors argued the term imposed for violating Penal Code section 422.6 should have been stayed pursuant to section 654, because the acts underlying that violation were the same as those underlying the assault charges. The court erred in finding the Legislature implicitly exempted section 422.6 from the operation of section 654, because the impact of the harm resulting from hate crimes extends beyond the immediate victims to the larger communities.id: 10538
Minor did not falsely identify himself to a police officer where he provided the officer one name of a hyphenated surname.Minor was lawfully questioned by a police officer. He told the officer his name is Kelly K. The last name on his birth certificate is W.K., a hyphenated name. The evidence was insufficient to prove the minor falsely identified himself to a police officer.id: 16635
The minor's act of mooning oncoming traffic did not amount to indecent exposure where there was no evidence that he acted with sexual intent.A minor was arrested for mooning oncoming traffic and charged with misdemeanor indecent exposure under Penal Code section 314, subd. 1. The juvenile court erred in sustaining the petition. While the minor clearly acted with the intent to annoy people, the bottom line was that there was no evidence that he acted with sexual intent.id: 14884
Recidivist provision of section 314 does not elevate an attempt at indecent exposure from a misdemeanor to a felony.A first conviction of indecent exposure under Penal Code section 314, subdivision 1 is a misdemeanor. The second and subsequent convictions are treated as felonies within section 314. Defendant admitted he had several priors under section 314, subdivision 1. However, in the instant case he was charged and convicted of only attempting to commit indecent exposure. The recidivist provision of section 314 does not elevate an attempt at indecent exposure from a misdemeanor to a felony.id: 10531
Photographing the school principal's office without revealing the content of any conversation was not a recording of a "confidential communication" under the eavesdropping statute.A school superintendent was convicted of violating Penal Code section 632, subd.(a) (intentional eavesdropping upon or recording of a confidential communication), based upon the installation of a hidden video camera, without accompanying sound, of the area of the desk, computer, file cabinet and bookcase in the principal's office. However, the conviction was reversed because the photographing of a principal's office for a purpose and in a manner which did not reveal the content of any conversation, was not an intentional act of recording a "confidential communication" as those terms were used in section 632.id: 14881
Defendant's hate crime conviction under section 422.7 was reversed because it is a penalty provision and not a substantive criminal offense.Penal Code section 422.7 elevates a misdemeanor to a felony if the crime causes physical injury and was motivated by hate. Defendant's nolo contendere plea to that provision was reversed because it constitutes a penalty provision and not a substantive criminal offense.id: 17435
In corporal punishment prosecution the court erred in failing to instruct sua sponte on a parent's right to discipline a child.Defendant was charged with inflicting corporal punishment on a child resulting in a traumatic condition (Penal Code section 273d). The trial court erred in failing to instruct sua sponte regarding a parent's right to discipline his child. Rather than being informed that reasonable corporal punishment will not subject defendant to criminal liability, the jury was advised the slightest unlawful touching is sufficient to constitute a battery. With this instruction and without any instructions on the right to use corporal punishment as discipline, a guilty verdict was virtually compelled in light of defendant admission that he hit his daughter. The failure to instruct on the right to discipline was therefore prejudicial.id: 10521
Evidence did not support defendant's conviction of illegal possession of moneys exceeding $100,000 where he never had actual or constructive possession.Defendant was charged with unlawful possession of moneys in excess of $100,000 (Health and Safety Code section 11370.6), not conspiracy to possess. However, although he aided and abetted a conspiracy to purchase cocaine for the purpose of sale, he never had actual or constructive possession of the money and never had actual or constructive possession of the cocaine. Nor did he aid and abet codefendant's possession of the money. His conviction for possessing the money was reversed.id: 10506
Fee collection practices in certain card games do not violate Penal Code section 330's percentage game prohibition.Card games do not become illegal "percentage" games when the cardroom operator permits multiple bets by a single individual on a single hand and utilizes fee collection practices under which a fixed fee is collected for each bet within one monetary range and a higher fixed fee is collected for each bet within a higher monetary range. Such fee collection practices do not violate Penal Code section 330's percentage game prohibition.id: 15502
There was insufficient evidence of "substantial emotional distress" for stalking where the victim was afraid, lost sleep, and joined a battered women's group.Defendant was convicted of stalking. The victim testified she was afraid of the defendant. Her boyfriend testified she suffered sleepless nights and joined a support group for battered women. However, she had previously organized a battered women's group, and there was no showing that she joined the present group as a result of defendant's conduct. While defendant's conduct may have been offensive and annoying, the evidence was insufficient to show the victim suffered "substantial emotional distress" within the meaning of Penal Code section 646.9.id: 15510
DMV erred in suspending a driver's license based upon a police officer's unsworn report providing issues regarding the initial stop.The Department of Motor Vehicles suspended defendant's driver's license for driving with an excessive amount of alcohol in her blood. The administrative hearing officer considered both the officer's sworn and unsworn report. The trial court properly granted defendant's petition for writ of mandate because there was no competent evidence in the sworn report to justify the initial stop and detention. Without a sworn report containing competent evidence, the officer's unsworn report cannot supply the missing evidence.id: 14873
Flag burning is protected under the First Amendment.After publicly burning an American flag as a means of political protest at the Republican National Convention, defendant was convicted of desecrating a flag in violation of Texas law. In a 5-4 opinion written by Justice Brennan, the Supreme Court held that defendant's conduct in burning the American flag was expressive conduct and was therefore protected by the First Amendment. Chief Justice Rehnquist and Justices White, O'Connor and Stevens dissented.id: 9483
Hit and run under section 20001 does not constitute a serious felony unless the serious injuries are caused by the flight rather than the impact.The question of whether a conviction for violation of the "hit and run" statute (Vehicle Code section 20001), during which the victim is seriously injured does not automatically qualify as a serious felony. The gravamen of the offense of hit and run is the flight of the defendant from the scene of the accident. Thus, such convictions can only constitute a serious felony where the defendant's flight is the cause of the serious injury. In the present case, the defendant caused serious bodily injury by the original impact with the victim, while driving, and thereafter failed to stop as required. The trial court erred in finding the hit and run prior conviction constituted a serious felony under the three strikes law.id: 14808
The poker card game known as Texas Hold'em is not a form of stud poker proscribed by Penal Code section 330.Penal Code section 330 proscribes stud poker, and no other category of poker games. Texas Hold'em falls within a separate category of card games known as community or spit-in-ocean, and is distinct from stud poker in numerous respects. Accordingly, Texas Hold'em is not proscribed by section 330.id: 10540
Appellant's fenced yard cannot be characterized as a public place for unlawful public intoxication provision.Appellant was located in his own front yard surrounded by a three and one-half foot high fence with a gate which was locked at the time. The gate was not open. The officer opened it. Appellant may have been found intoxicated in a place exposed to public view but that, in and of itself, is not a violation of Penal Code section 647, subdivision (f).id: 10490
Felony practicing medicine without a license cannot be accomplished against an undercover officer feigning a physical ailment.Practicing medicine without a license is elevated to a felony (Business and Professions Code section 2053) when done under circumstances which cause or create a risk of great bodily harm or severe illness. Because the undercover officer did not actually suffer from the physical ailments which he feigned to defendant and therefore was not threatened with serious bodily harm or illness by defendant's treatment of him, the evidence did not make out a violation of section 2053 or an attempt to violate that section.id: 10514
A conviction of hit and run without more is insufficient to support an order of restitution.Defendant pled guilty to violating Vehicle Code section 20001, commonly referred to as hit and run. The court erred in ordering defendant to pay restitution because the order was tantamount to an assignment of civil liability in violation of his civil due process rights. A plea of guilty to a hit and run offense admits responsibility to leaving the scene of an accident, but not for causing injury. Restitution is proper only to the extent that the victim's injuries are caused or exacerbated by the offender's leaving the scene.id: 13422
Updated 6/20/2023“Disturbing the peace” in the domestic violence context was not unconstitutionally vague.Defendant pled guilty to a domestic violence offense. He was released pending sentencing but was found to violate a provision in the agreement specifying that he not disturb the peace. He argued that provision was unconstitutionally vague. However there is a definition of the phrase within the context of domestic violence that makes the provision sufficiently clear. Defendant’s actions in yelling at the victim for 10 minutes and withholding her phone qualified as disturbing the peace.id: 27633
Evidence supported the conviction for hit and run causing permanent serious injury where the victim’s broken leg had not healed nine months later and a doctor found the leg would never be fully functionalDefendant was convicted of leaving the scene of an accident resulting in permanent, serious injury to another in violation of Vehicle Code section 20001(a)(b)(2). He argued the evidence was insufficient to support the jury’s finding of permanent, serious injury and the expert’s opinions were based on conjecture. However, the victim had broken bones in his leg that still hadn’t healed nine months after the accident and impacted his ability to walk, balance and sleep. One doctor testified the function in the leg was permanently impaired. The evidence was sufficient to support the conviction. id: 27511
Evidence supported the finding of implied malice for a physician who overprescribed opioids resulting in the death of three people. Defendant was a physician who was convicted of implied malice second degree murder for overprescribing medication resulting in multiple deaths. She argued her conduct was negligent, supporting convictions for involuntary manslaughter, but did not show the necessary recklessness for implied malice. However, the evidence showed defendant subjectively appreciated the risk to her patients of her opioid prescription practices. The evidence showed that her actions in prescribing the opioids were a proximate cause of the victims’ deaths even though they also had methadone or alcohol in their systems.id: 25986
Evidence supported the hit and run conviction even though defendant called 911 shortly after leaving the scene of the collision. Defendant argued the evidence was insufficient to support his hit and run conviction under Vehicle Code section 20001, subd.(a) because he stopped and called 911 shortly after leaving the scene of the collision. However, defendant drove a short distance before calling 911, and the evidence supports the jury’s finding that he failed to stop as soon as reasonably possible.id: 25823
Damaging a telephone line in violation of section 591 is not a specific intent crime, and defendant was not entitled to an instruction on voluntary intoxication.Defendant was convicted of damaging a telephone line or mechanical equipment connected to the line in violation of Penal Code section 591. Contrary to defendant’s claim, section 591 is not a specific intent crime, and so the trial court did not err in refusing to give a voluntary intoxication instruction.id: 25802
The exclusionary remedy of section 632 (d), which prohibits secretly recording calls, did not survive the passage of the truth-in-evidence provision in Prop 8.Penal Code section 632, prohibits secretly recorded conversations. However, to the extent that section 632 (d) demanded suppression of relevant evidence in criminal proceedings, it was abrogated when the voters approved Prop 8, which included the “truth-in-evidence” provision. Although the Legislature amended section 632 several times after the enactment of Prop 8, none of the amendments revived the exclusionary rule of section 632 (d).id: 26557
Instruction on unauthorized practice of law, and conspiracy to commit that offense did not violate defendant’s right to free speech. The trial court crafted an instruction recognizing that the charged Business and Professions Code section 6126 requires more than just holding oneself out as an attorney - it requires a transaction. Contrary to defendant’s claim, the instruction given was not overbroad and did not violate defendant’s right to free speech.id: 25050
Evidence supported the privacy violation finding where the minor filmed another high school student masturbating in a bathroom stall.Evidence supported the juvenile court’s finding that the minor engaged in the unauthorized invasion of privacy of another (under Penal Code section 647, subd.(j)(1)) where he filmed a student masturbating in a bathroom stall at the high school. Even though the minor filmed the victim while standing outside the stall in the public area, the victim still had an expectation of privacy. The fact that the victim was moaning so that others could hear did not reduce his privacy expectation.id: 24819
Evidence showed the minor had “concealed” the cellphone for purposes of section 647(j)(3)A) where he had hidden it while recording sex.A high school student used his cell phone to record a video of a classmate, without her knowledge, while they were engaged in consensual sex. The juvenile court later determined that the minor had committed an unauthorized invasion of privacy in violation of Penal Code section 647, subd. (j)(3)(A). He argued there was insufficient evidence that the cellphone was “concealed” for purposes of the statute. However, the record shows he kept the device outside of the victim’s view and kept it hidden until later telling her he had begun recording the act.id: 26385
A misdemeanor charge of leaving the scene of an accident causing only property damage is not subject to disposition by a civil compromise.Defendant was charged under Vehicle Code section 20002 (a) with misdemeanor hit-and-run driving in an incident that resulted in property damage in the amount of $1,166. The trial court erred by finding the matter could be resolved by way of a civil compromise because a defendant/driver’s satisfaction of the amount of the victim’s property damage stemming from the accident will not vindicate the public harm resulting from that defendant’s failure to stop and exchange the required information. id: 26090
The court erred by crafting an instruction for unlawful police assault by taking the definition of “unlawful” from another instruction. There is currently no CALCRIM instruction for Penal Code section 149, which criminalizes assault by a public officer under color of authority without legal necessity. The instruction crafted by the trial court informed the jurors that the issue of “legal necessity” would be described in other instructions, which it was not. Moreover, the court improperly told the jurors they should define an element of the charged crime by using the definition for “unlawful” found in CALCRIM No. 2670.id: 25383
Under section 633.5, a mother who believes her child is the victim of child molest can consent to have a call recorded with the suspect.Under Penal Code section 632, both parties must consent before a conversation is recorded, unless one party believes the recording will produce evidence of an enumerated crimes. Section 633.5 provides an exception to the rule in that circumstance. The child molest victim’s mother reasonably suspected the crime when she recorded the call, and section 633.5 allows a parent to consent on behalf of a child under these circumstances.id: 25326
Defendant was properly convicted of 10 counts of leaving the scene of an accident where he drove his car into 10 groups of people without stopping to render aid. Defendant, while angry, drove his car onto the Venice Beach Boardwalk and plowed into 10 separate groups of people in close succession. He argued the evidence only supported one count of leaving the scene of an accident under Vehicle Code section 20001, subd.(a) because he never stopped his car between collisions. However, defendant was properly convicted of 10 counts because there were 10 distinct accidents after which he could have stopped and rendered aid but did not.id: 25269
Prop 8 truth-in-evidence provision from prevents suppression of evidence from illegally recorded phone call. Defendant argued the trial court erred by admitting a recorded telephone conversation between a defense witness and the mother of one of the victims. He argued the ruling violated Penal Code section 632, subd.(d), which prohibits the admission of evidence obtained as a result of recording a conversation without the consent of all parties. However, the “truth-in-evidence” provision added to the state constitution as part of Proposition 8 in 1982, abrogated the exclusionary rule to the extent it is invoked to suppress relevant evidence in a criminal case. id: 25233
Defendant may be convicted of receiving or acquiring proceeds from drug sales that he allegedly conducted himself. A defendant can be convicted of money laundering under Health and Safety Code section 11370.9, subd.(a) even if he acquired the money in question by unlawfully selling the marijuana himself.id: 25057
Loitering near a school provision is not unconstitutionally vague because it includes a scienter requirement.The minor was found to have been loitering about a school in violation of Welfare and Institutions Code section 653b. Contrary to defendant’s claim, the provision is not unconstitutionally vague because it includes a scienter requirement - proof that the loitering person intended to commit a crime.id: 24558
Evidence supported the conviction of unlawful use of personal identifying information for defendant who ran a web site publishing personal photos of others and another allowing the victims to pay to remove the photos.Defendant operated a web site that allowed people to send photos (mostly nude photos) of another person. He operated another web site allowing individuals whose photos were published on the first site to pay to have the photos removed. He argued the evidence didn’t support his conviction for unlawful use of personal identifying information under Penal Code section 530.5, subd.(a) because he had immunity as an “interactive computer service” or “software provider” and that he didn’t obtain the information for an unlawful purpose. However, he was not entitled to immunity under the Communications Decency Act because he acquired the information with the intent to defraud, and the evidence shows he used the information for the unlawful purpose of invading the victims’ privacy. id: 24776
Evidence supported the extortion convictions for the defendant who ran a web site charging victims for the removal of personal photos from his other website.Defendant operated a web site where people submitted personal photos of others, and a second website where the victims could pay to have the photos removed. He argued the evidence was insufficient to support his convictions for extortion under Penal Code section 520, because he never threatened to expose any of the victims’ secrets, and the alleged secrets (the photos), were already in the public domain and he merely operated a business providing an opportunity to remove the photos. However, defendant was not engaged in a legitimate service. Moreover, the threats were inherent in the structure and content of the website, which was a means to get the victims’ money to reduce further embarrassment. And the victims’ photos and identifying information were “secrets” for purposes of the extortion statute. id: 24777
Law increasing penalties for reckless driving by paparazzi does not violate the First Amendment. Defendant, a celebrity photographer, was charged with violating Vehicle Code section 40008, subd. (a), which increases the penalties for reckless driving with the intent to take a picture or make a recording for a commercial purpose. He argued the law unduly infringed on the freedom of “newsgatherers” in violation of the First Amendment. However, section 40008 does not violate the First Amendment. It is a law of general application that does not target speech or single out the press for special treatment.id: 24338
Machines used in Internet case sweepstakes operation constituted illegal slot machines.Internet café operations promoted the sale of Internet time and other products with a sweepstakes giveaway allowing participants to win cash prizes. The devices used resembled casino-style slot machines, but employed modern technology resulting in certain differences. Nevertheless, the devices met the definition of a “slot machine or device” in Penal Code section 330b.id: 24150
Separate convictions for attempted witness dissuasion were proper for every call defendant made to his sister asking to persuade a witness not to testify.Defendant made six separate telephone calls urging his sister to persuade the prosecution’s chief witness not to testify at trial. He argued that six convictions were improper and that he committed a single offense. However, a separate conviction was proper for every call to his sister asking her to dissuade the witness.id: 23900
The trial court did not improperly instruct the jury that a jail officer must give informed consent to an ex-convict’s entry upon jail grounds to be authorized. Defendant was convicted of unauthorized entry onto prison grounds by an ex-convict in violation of Penal Code section 4571. He argued the trial court erred by instructing the jurors that a jail officer must give informed consent of an ex-convict’s entry upon jail grounds to be authorized. He claimed the instruction denied him the affirmative defense of actual or apparent consent. However, because an officer must have actual knowledge of the prior conviction in order to consent to an entry by an ex-convict, the trial court properly instructed the jury that informed consent was required. id: 23840
The trial court did not err by failing to instruct sua sponte on battery against a train rider in defendant’s case of battery against a train worker. Defendant was convicted of battery against a transportation worker in violation of Penal Code section 243.3. He argued the trial court erred by failing to instruct sua sponte on battery on a person riding public transportation under section 243.35, but that was not a lesser included offense of section 243.3. id: 23852
A juvenile hall is “local detention facility” within the meaning of the “battery by gassing” statute.A minor argued there was insufficient evidence to support his conviction for “battery by gassing” because the juvenile hall where he was confined did not qualify as a “local detention facility” within the meaning of Penal Code section 243.9. However, the phrase “any local detention facility” as used in section 243.9 includes juvenile halls. id: 23565
Defendant was properly convicted of violating the red light traffic law even though the city failed to comply with the 30 day period of warning notices two years earlier.A city may install red light cameras at an intersection but must give a 30-day notice where warnings are given instead of tickets. The notice requirement applies to each installation of a device, and is not satisfied by a city’s initial announcement. However, compliance with the 30-day period of warning notices is not a precondition to issuing a valid citation for a red light traffic violation, and it did not invalidate defendant’s ticket that was issued two years later.id: 23528
A bicyclist can be charged with recklessly driving a vehicle.While riding a bicycle, defendant collided with a pedestrian and was charged with recklessly driving a “vehicle” under Vehicle Code section 23103. Contrary to defendant’s claim, a bicyclist can be charged with recklessly driving a vehicle. id: 23669
Defendant was properly convicted of participating in an endless chain scheme where the victims paid money for memberships and were paid to recruit others.The evidence supported defendant’s conviction for participating in an endless chain scheme under Penal Code section 327. Because the victims paid money for memberships and recruited other people to buy memberships, the scheme was a classic endless chain. It did not matter that in addition to recruiting members the victims could have earned money by selling products from the website. Because the operation was an endless chain scheme it was also a security and the evidence therefore supported his conviction for the unlawful sale of securities. id: 23685
Prop 8 abrogated the exclusionary rule in section 632, the provision that prohibits the recording of private conversations absent consent. Defendant argued the trial court contravened the exclusionary rule in Penal Code section 632, subd.(d) by admitting an audio recording of a conversation between defendant and the rape victim. However, the truth-in-evidence provision enacted as part of Proposition 8 in 1982 abrogated that exclusionary rule. id: 23426
Pit bull owner was properly convicted of dangerous animal conviction where the chained dog bit a neighbor resulting in four stitches and excessive bleeding.A person violates Penal Code section 399 if her or she has an animal known to be mischievous, fails to exercise ordinary care, and as a result a human being suffers serious bodily injury or death. Defendant’s pit bull had a history of vicious attacks and defendant was not strong enough to control the dog. He failed to exercise proper care when he chained th dog, close to a public sidewalk in a residential neighborhood, unattended in an enclosed area. The victim suffered serious injury where he had two puncture wounds resulting in excessive bleeding and four stitches. That the wound healed leaving no scar did not matter.id: 23184
Defendant’s demand for a job constituted a demand for property for purposes of the extortion statute.Defendant argued the evidence was insufficient to support his conviction for delivering a letter with the intent to extort because his demand for a job was not a demand for money or property within the meaning of Penal Code section 523. However, defendant’s demand for a job constituted a demand for property for purposes of the extortion statute.id: 23180
California’s incest prohibition does not violate a defendant’s right of liberty under the 14th Amendment.Defendant was convicted of incest and assault arising from a sexual encounter with his sister. He argued the incest statute, Penal Code section 285, violates the right of liberty under the due process clause of the 14th Amendment by criminalizing consensual sexual activity between adults. His argument was based on Lawrence v. Texas (2003) 539 U.S. 558. However, California’s interest in protecting the integrity of the family unit and protecting against inbreeding are sufficiently important to justify section 285's incest prohibition.id: 23152
The minor’s speech created a clear and present danger of immediate violence and therefore violated section 415, subd.(2). Evidence supported the juvenile court’s finding that the minor disturbed another person by loud and unreasonable noise in violation of Penal Code section 415, subd.(2). While the minor was escaping from an accused theft, the female victim stopped him, but the minor shouted obscenities and vague threats causing her to back off. The minor’s speech was not within the protected range of the First Amendment where the threats and obscenities were disruptive rather than communicative. And he forfeited the First Amendment claim by not raising it at trial.id: 23158
An incarcerated defendant can be convicted of threatening a public official even if he does not have a “stated release date.”Defendant was convicted of threatening six public officials (deputy district attorneys) in violation of Penal Code section 76. He argued he did not violate section 76 as a matter of law because he was incarcerated when he made the threats and did not have a “stated release date.” However, an incarcerated defendant charged with threatening an elected official need not have a stated release date to have the apparent ability to carry out that threat.id: 23032
Testimony on the accuracy and reliability of red light cameras was not required to admit the evidence and the photos and video were not hearsay. Defendant was convicted of failing to stop at a red light intersection in violation of Vehicle Code section 21453, subd.(a) She challenged the admission of the computer generated photographs and a video of the traffic violation. Testimony on the accuracy and reliability of computer hardware and software is not required as a prerequisite to the admission of computer records. Moreover, the photographs and video were not hearsay and no hearsay exception was required to admit the evidence. Finally, substantial evidence supported the finding that the yellow light interval conformed to the statutory requirement.id: 22625
Evidence supported the fleeing the scene enhancement where defendant drove into a wall, stopped, and then waked away.Defendant was found to have violated Vehicle Code section 20001, subd.(c), fleeing the scene after committing gross vehicle manslaughter while intoxicated. Contrary to defendant’s claim, the evidence supported the enhancement finding where she drove into a wall, stopped and then walked away.id: 22692
A jurisdiction might give 30 day notice before writing tickets after commencing an automatic traffic enforcement system, but need not give notice each time it installs equipment at a new intersection. Before a jurisdiction issues traffic citations utilizing an automated traffic enforcement system it must provide a 30 day period of warning notices and a 30 day public announcement at the commencement of the ATES in that jurisdiction. It need not provide a warning each time ATES becomes operational at a new intersection.id: 22660
Statute prohibiting cell phone use while driving applies to someone stopped at a red light.Defendant was convicted of violating Vehicle Code section 23123 which prohibits people from talking on cell phones while driving on public roadways unless the phone is configured for hands-free listening and talking. He argued he was not “driving” at the time because he was stopped at a red light. However, the law was intended to apply to people driving on public roadways who, like defendant, pause temporarily to comply with the rules of the road.id: 22481
Where a driver knows that a person has been injured in an accident, a duty arises to determine whether the injured person needs assistance.Defendant was convicted of violating Vehicle Code section 20001 for leaving the scene of a one vehicle accident without assisting a person injured in the accident. A driver’s knowledge that a person involved in an accident is injured gives rise to a duty to ascertain what assistance the injured person may need. Moreover, any person who is considered a “driver” for purposes of the hit-and-run statutes (including the vehicle’s owner under some circumstances) has a duty to render assistance to other persons in the same vehicle who are injured in the accident, including the actual driver of the vehicle.id: 22367
Evidence supported conviction for bringing alcohol into a prison camp where defendant ran and grabbed trash bags containing alcohol after a signal from a civilian driver. Evidence supported defendant’s conviction for bringing alcohol into a prison camp in violation of Penal Code section 4573.5. The trash can was placed in an atypical location to create a depository for the delivery person. The sedan driver’s repeated honking served as a signal that the contraband had been delivered. Defendant first ran towards the trash can and then ran away with the bounty. id: 22351
Provision prohibiting a challenge to a fight in public is not a specific intent offense.The minors were found to have violated Penal Code section 415, subd.(a) by making a challenge to a fight in a public place. They argued their conduct was not a “challenge to a fight” because they were merely responding to a gang sign displayed by an occupant in the vehicle. However, section 415, subd.(1) does not require the specific intent to start a fight. The testimony that defendants made gestures to someone in a car was sufficient to support the finding.id: 22068
Failure to stop at the scene of the accident was all that was required to prove the enhancement for fleeing the scene after vehicular manslaughter.Defendant argued that the trial court erred by failing to instruct the jury that the flight enhancement under former Vehicle Code section 20001, subd.(c), required the prosecution to prove that he left the scene after committing voluntary manslaughter with an intent to avoid arrest or detention. However, proof that he failed to immediately stop at the scene of the accident is all that was required.id: 22039
Attempted lynching provision was appropriate and defendant was not required to be prosecuted under the “more specific” inciting a riot statute.The minor’s boyfriend had been detained in a police car when she approached, with others, and acted as if she was going to grab the police officer. She argued the attempted lynching finding under Penal Code sections 666 and 405a were legally incorrect as she should have been prosecuted under the more specific statute of inciting a riot (a misdemeanor) under section 404.6. However, the latter statute does not punish conduct amounting to attempted lynching, and the minor was properly prosecuted for that offense.id: 22380
The trial court did not err by instructing defendant would be guilty of animal neglect if his actions created a high risk of great bodily injury to the animals. Defendant was convicted of several counts of animal neglect under Penal Code section 597, subd.(b). The trial court did not err by instructing that he could be convicted if his acts or omissions created a high risk of great bodily injury (as opposed to death) to the animals under his care. Moreover, any challenge to the instruction given was barred by the doctrine of invited error since trial counsel requested the instruction.id: 22177
Evidence of malnutrition and dehydration supported defendant’s convictions for animal neglect.Defendant kept over 90 animals in his residence including rabbits, birds, dogs and guinea pigs. Evidence supported his six animal neglect convictions where his failure to properly provide food and shelter created a high risk of great bodily injury to the animals, many of whom suffered from malnutrition, dehydration and other diseases.id: 22178
Defendant convicted of animal cruelty was not entitled to comparative negligence of animal control agency when computing restitution and was not entitled to an offset for the amount the agency later received in adoption fees. Defendant was convicted of animal cruelty and was ordered to pay a large restitution amount to the animal welfare agency. He argued the trial court erred by refusing to apply comparative fault principles in light of the agency’s alleged negligence with animals. Although defendant would not be liable to the agency at all under Penal Code section 1202.4 (the direct restitution provision), he was liable under section 597, subd.(f)(1), and no comparative fault analysis was required. Moreover, defendant was not entitled to a setoff for the revenues the agency received for later adopting some of the animals. id: 22139
The curfew ordinance did not require a prior warning citation.The minor argued that she did not violate the curfew ordinance or the San Diego Municipal Code section which codified the ordinance. Contrary to her claim, there was no implied requirement that she had previously received a curfew violation warning citation. id: 21710
The trial court did not err by not excluding the Yahoo chat dialogue between defendant and the purported minor because it was not a confidential communication within the meaning of section 632.Defendant was convicted of attempting to send harmful matter with intent to seduce the minor in violation of Penal Code sections 664 and 288.2, subd, (a). He argued the trial court erred by not excluding the Yahoo chat dialogue between defendant and the purported minor because it was a confidential communication pursuant to section 632. However, while defendant desired that the communication be confidential, this expectation was unreasonable as it could have been shared or viewed with any computer user the young victim wanted to share. Assuming the communications were protected by section 632, any error was harmless since the jury would still have heard about defendant's sexually explicit conversations with young girls.id: 21500
Public schools are public places for purposes of vandalism statute. The minor argued the evidence was insufficient to support the finding that he possessed items in a public
place with the intent to deface (Penal Code section 594.1). However, the fact that the general
public does not have unrestricted access to school campuses does not preclude a finding that they
are public places within the meaning of section 594.1.id: 21333
Local curfew ordinance does not require that a minor receive a previous warning citation before a violation can be alleged.The minor was found to have violated a municipal curfew ordinance in San Diego. Contrary to her claim, the ordinance did not contain an implied requirement that to violate it, she must have previously been given a curfew violation warning citation.id: 21396
There was no requirement that the minor’s parent be served with the injunction. The minor argued that the gang injunction did not apply to him because there was no evidence his parent had been served with, or had knowledge of the injunction. However, there was no requirement that the minor’s parent be served. Delivery of the injunction to the minor was adequate notice. id: 21702
The minor who associated with the gang was subject to the injunction. The minor argued he was not subject to the gang injunction because he was not a member of the gang even though he associated with its members. However, he admitted membership before denying it. The injunction would have applied even if he was only an associate and, contrary to the minor’s claim, the activity violating the injunction need not be gang related. He violated the injunction by being out after curfew.id: 21701
The trial court had no duty to instruct defendant in a hit and run case had no duty to assist the victim if others were already assisting since there was no evidence defendant knew others were present. Defendant was convicted of hit and run resulting in death. He argued the trial court had a duty to instruct that he had no duty to assist the victim if others were already providing aid. However, the facts showed defendant left the scene without checking on the victim’s condition and without knowing whether anyone else was there to assist him.id: 20777
The trial court did not err by refusing the hit and run defendant’s proposed instruction on constructive knowledge.Defendant was convicted of felony hit and run resulting in death in violation of Vehicle Code section 20001. The trial court did not err in refusing his proposed instruction saying knowledge may be imputed to the driver where the fact of injury is visible and obvious. The proposed instruction could be misleading because there may be situations where a person commits the offense where the fact of the injury is not visible and obvious.id: 20776
The trial court was not required to give a unanimity instruction in the felony hit and run case.Defendant was convicted of hit and run resulting in death. He argued the trial court should have instructed the jury sua sponte with a unanimity instruction as to when he knew he had be involved in an injury-causing accident, and therefore when his duty to act arose. However, there was one discrete act of leaving the scene after an injury-producing accident and the jury was not required to determine when his knowledge arose.id: 20775
Hit and run statute does not require defendant’s actual knowledge that the collision involved another person.Defendant was convicted of leaving the scene of an accident where there had been an injury under Vehicle Code section 20001. He argued that a conviction under that provision requires proof that the driver had actual knowledge of having been involved in an accident that resulted in injury to a person. However, constructive knowledge is sufficient to establish that the accident or collision involved a person. While defendant may have believed he hit a deer, rather than a person, he did not see a deer and did not know if there were deer in the residential neighborhood. In fact, there was evidence that deer did not frequent the area. Moreover, the impact was substantial and caused considerable damage to defendant’s car. And when defendant reached home, he searched the Internet for stories regarding the accident. The evidence showed he had knowledge that he hit a person for purposes of section 20001.id: 20720
Drunk driving arrest was not unlawful where the arresting officer drove an unmarked patrol car.Defendant argued his drunk driving arrest was unlawful because the officer who pulled him over was driving an unmarked patrol vehicle. Contrary to defendant’s claim, there was no violation of Vehicle Code section 40800 which applies to traffic officers engaged in traffic enforcement. Even if the officer qualified as a “traffic officer” under section 40800, the sanction for the violation, excluding the officer’s testimony in a speed-related case, would not invalidate the present arrest.id: 20367
Stickers qualified as implements for purposes of graffiti statute.The evidence supported the finding that the minor possessed graffiti tools because the stickers found in his shoe qualified as implements under Penal Code section 594.2, subd.(c)(2). id: 20366
Misdemeanor vandalism acts can be aggregated to exceed the $400 value which constitutes a felony if the acts were part of a single plan.The minor was found to have committed the felony of vandalism of property valued in excess of $400. Separate instances of misdemeanor vandalism may be aggregated to reach the $400 figure if the incidents were part of a single plan, where as here the damage to the cell phone and car windshield occurred within a brief time period, in the same approximate location in acts involving the same victim.id: 20565
A minor who was drunk in a woodshed next to a house, and who came out to the street at the officer's request was not drunk in public under section 645(f).The police found an intoxicated minor in a wood shed located 10-15 feet from the side of a house. The juvenile court determined the minor had violated Penal Code section 647, subd.(f) which prohibits being drunk in a "public place." However, the evidence did not support the true finding for two reasons. First, the woodshed next to the house was not a public ;lace. Next, the minor's compliance with the officer's request to come out of the woodshed and to the street did not constitute a violation of section 647, subd.(f).id: 20219
To constitute "stalking" the victim's fear need not be contemporaneous with the stalker's threats and harassment.Defendant argued that to be punishable under Penal Code section 646.9, the stalking or harassment must contemporaneously cause fear. While a victim must become aware of the stalker's conduct "because without awareness, the victim could not suffer emotional distress" that awareness need not be contemporaneous with the course of conduct that constitutes stalking.id: 15512
Injunction only prohibits conscious expression of gang affiliation and does not prohibit unintentional actions interpretable as gang related.Provisions of the gang abatement injunction prohibit gang members from using phrases, gestures or symbols commonly associated with the gang. It also prohibits the wearing of certain clothing which spells out or is otherwise associated with the Posole gang. However, the questioned provisions only enjoin the conscious expression of gang affiliation, support and allegiance. Defendant would not be in violation if he unintentionally formed a hand sign interpretable to the gang or wore a jersey in a football game bearing a number forbidden by the injunction.id: 14878
In defining "gang membership" for purposes of an injunction it need not be shown that all or most of defendant's time and efforts are devoted to the gang.In determining whether defendant was a gang member for purposes of the gang abatement injunction it was not necessary that the prosecutor prove defendant devoted all or a substantial part of his time and efforts to the gang. Instead, it must be shown that defendant's participation or acting in concert is more than nominal, passive, inactive, or purely technical.id: 14877
Gang injunction is not more burdensome than necessary by infringing on protected family relationships.Defendant argued the gang injunction was overly broad in that it prohibited association with other gang members who may be family. While the injunction has a limited impact on family relationships it is necessary to the effectiveness of the injunction and does not impermissibly burden defendant's associational rights.id: 14876
Defendant was properly convicted of felony dissuading a victim, and the lack of an instruction on "force or fear" did not render the offense a misdemeanor.Defendant was convicted of dissuading a victim or witness under Penal Code section 136.1, subd.(b)(1). He argued the evidence did not sustain the felony conviction because the jury was not instructed on the "force or fear" element, and therefore the offense was a misdemeanor under section 136.1, subd.(b). However, section 136.1, subd.(b)(1) is a wobbler, and following a conviction and prison sentence, defendant was properly convicted of a felony.id: 18363
Evidence supported the conviction of dissuading a victim even though the victim requested a civil standby, when she finally reached the police.Evidence supported defendant's conviction of dissuading a victim under Penal Code section 136.1, subd.(b)(1). Defendant argued the evidence showed, at best, that when she first called 911 she was merely going to request a "civil standby" rather than report her victimization, and this was shown by her request for a civil standby during her subsequent call. However, a request for a civil standby may result in a report of victimization. Moreover, the request for a civil standby here did not occur until after the defendant had twice prevented the victim from contacting the police.id: 18364
The trial court erred by finding the helmet law violations were correctable and subject to "fix it" tickets.The California Highway Patrol issued five tickets to a motorcycle rider found to be in violation of the state helmet law. The trial court later erred in ruling the violations were correctable - subject to "fix it" tickets - and requiring the CHP to sign off on the certificates of correction.id: 20030
Disabling of a phone line is "unlawful" under section 591 if the person did it with malice. Defendant was convicted of disabling a utility line in violation of Penal Code section 591. He argued a conviction under that provision requires proof that removal of the telephone and telephone jack were unlawful for a reason independent of section 591. However, by using the word "unlawfully" in section 591, the Legislature did not intend that the prohibited conduct be unlawful in the manner defendant argued. Proof that a person did the act with malice is proof that the act was unlawful.id: 19633
Defendant was properly convicted of three counts of corporal injury to a cohabitant arising from a single incident. Defendant argued he was improperly convicted of three counts of corporal injury to a cohabitant under Penal Code section 273.5
because the incident involved a single continuous assault. However, the offense is complete after the forcible blow results in injury. Where multiple applications of force result in separate injuries, the perpetrator has completed multiple violations of section 273.5.id: 19634
Defendant was properly convicted of attempted extortion and sending a threatening letter with intent to extort even though she had already reported a sexual assault to the police at the time she delivered the letter.Evidence supported defendant's convictions of attempted extortion and sending a threatening letter with the intent to
extort. She argued her letter to the man with whom she had consensual sex did not threaten to accuse him of a crime because, at the time, he knew she had already reported him to the
authorities who had decided not to press charges. She claimed a conviction for attempted extortion cannot be predicated on a threat to file a civil action. However, the jury could have
reasonably believed defendant's letter was intended as a threat to pursue a civil remedy and to continue her efforts to have him held criminally liable with the specific intent to extort money
and other property.id: 19003
Public urination is a crime in California.The detention and search were proper because the officer had a reasonable suspicion defendant was committing a "public nuisance" within the meaning of Penal Code section 370 by urinating in public in view of a busy street.id: 18944
Evidence supported defendant's conviction of obstructing a telephone where he disconnected the phone to prevent the victim from calling the police.Defendant argued the evidence was insufficient to support his conviction for obstructing a telephone under Penal Code section 591 because there was no evidence he "unlawfully" removed or obstructed the telephone line. However, by disconnecting the telephone, defendant removed it, thereby precluding its use for receiving or placing calls The evidence shows defendant did this to prevent the victim from calling the police. The conviction was proper.id: 18365
Animal cruelty is a general intent crime.Animal cruelty, as defined in Penal Code section 597, subd.(a), is a general intent crime. Therefore, the trial court did not err in refusing to instruct that defendant must have acted with the specific intent to maim, mutilate, torture, wound or kill a living animal.id: 18317
A person may be convicted of driving with an invalid license even if he or she did not realize the license had been suspended.A defendant may be convicted of driving with an invalid license in violation of Vehicle Code section 12500 if he did not have actual knowledge that his license was suspended because section 12500 is a public welfare statute.id: 18301
Section 647, subd.(f) does not punish the condition of homeless alcoholics, but rather punishes conduct posing a public safety risk.Defendant argued that his public intoxication conviction under Penal Code section 647, subd.(f), constituted cruel and unusual punishment because his status as an involuntarily homeless, chronic alcoholic makes it impossible for him to avoid being intoxicated in public. However, the statute is carefully crafted to apply only if the person is unable to care for his or her own safety or the safety of others, or is obstructing a public way. It does not punish the condition of being a homeless chronic alcoholic.id: 17929
Provision prohibiting throwing stones at a bus does not require an intent to strike or wreck the bus.The minor was found to have violated Penal Code section 219.2 which prohibits throwing stones or other hard objects at buses. He argued the evidence was insufficient to support the conviction because there was no showing of intent to strike or wreck the bus. However, section 219.2 does not require an intent to strike or wreck a bus.id: 17907
In a prosecution for impersonating a public officer under section 146a, the prosecution is not required to prove the defendant falsely impersonated a state officer.Defendant was convicted of impersonating a public officer in violation of Penal Code section 146a, subd.(b). He argued there was insufficient evidence to prove he impersonated a state public officer. However, it appears the Legislature committed a drafting oversight when it amended section 146a in 1993, by failing to insert a comma and the word "or" after the term "public officer." Because it is clear that the Legislature intended to preserve the former construction of the statute, the term "public officer" as used in the provision, is not modified by the phrase "of any state department." Therefore, the prosecution was not required to prove that defendant falsely impersonated a state public officer.id: 17669
Evidence supported the impersonating an officer conviction where defendant approached an accident victim and politely asked to see identification.Defendant was convicted of impersonating a public officer under Penal Code section 146a. He argued there was insufficient evidence to support the conviction because he never said anything to indicate he was claiming to be an officer. However, he and a friend drove up in a van, and approached the victim who had just been in a traffic accident. They asked the victim if they could see some identification. Because they were polite, the victim assumed they were off duty officers. The evidence was sufficient to support the verdict.id: 17670
Calling the 911 emergency line with the intent to annoy is not a lesser included offense of falsely reporting a bomb because that can be done without calling 911.Defendant argued the trial court erred in failing to instruct on telephoning the 911 emergency line with the intent to annoy (Penal Code section 653X) as a lesser included offense of maliciously and falsely reporting a bomb under section 148.1, subd.(c). However, the former is not necessarily included under the "elements test" since section 148.1 can be violated without calling the 911 emergency line. The same is true under the accusatory pleading test since the information did not specify defendant called the 911 operator. That the evidence at trial showed defendant called 911 did not change the result.id: 17630
CALJIC No. 16.631 properly instructs that where possession of a valid driver's license is a complete defense, defendant has to burden to produce the license.The trial court properly instructed the jury with CALJIC No. 16.631, that where possession of a valid license is a complete defense, the burden is on the defendant to produce the license. The prosecution was not required to prove all possible defenses such as the possibility that defendant held a valid driver's license issued by another state or county.id: 17284
Trestle owned by the railroad, but visible to the public, was a public place under statute prohibiting possession of a spray can with intent to deface public property.The minor was found to have possessed an aerosol container with intent to deface while on a public place under Penal Code section 594.1, subd.(e)(2). He was found on a trestle adjacent to railroad tracks and questioned whether that was a "public place" within the meaning of the statute. Whether a person is on a "public place" under section 594.1, is determined by examining the totality of the circumstances. Here, the evidence supported the finding where the trestle, though owed by the railroad, was unenclosed, visible to the public and exposed to general view.id: 17103
A phone conversation is confidential under section 632 if a party has an objectively reasonable expectation that it is not being recorded.Penal Code section 632, subd.(a) prohibits the recording of a telephone call without consent from all parties, but only if the call includes a "confidential communication." A conversation is confidential if a party to that conversation has an objectively reasonable expectation that it is not being recorded.id: 16733
Removal of a battery from a cordless phone supported the conviction of obstructing a phone line under section 591.During an argument with his estranged wife, defendant removed the battery from her cordless phone. She was able to call the police from another phone. Evidence supported defendant's conviction of obstructing a telephone line under Penal Code section 591.id: 16473
Unlawful peeking does not require proof of an intent to commit a crime if the opportunity arose.The crime of unlawful peeking under Penal Code section 647, subd.(i), does not require the prosecution to prove that the defendant peeked through a window with the intent to commit an offense if the opportunity to do so arose. The statute criminalizes the act of peeking itself.id: 16445
Court properly instructed animal cruelty required proof of either deprivation of necessities or subjecting the animals to needless suffering, not both.Defendant, who kept her 92 cats in a small trailer, was convicted of animal cruelty under Penal Code section 597, subd.(b). The trial court properly instructed the jury it could find her guilty for either 1) depriving the cats of necessary food, drink, or shelter or 2) subjecting the cats to needless suffering. The inclusion of the word "and" in the middle of a long subdivision in the statute did not require proof of both.id: 16368
The court did not err in giving the standard hit and run instruction rather than instructing that defendant had no duty to assist the victims because others were already providing aid.Defendant was convicted of felony hit and run. He argued the trial court erred in instructing the jury that he was under a duty to aid injured parties (CALJIC No. 12.70) and in failing instead to instruct that he was absolved from such duty since others were already assisting the injured. However, a driver's duty to render assistance under Vehicle Code section 2003, at minimum requires that the driver first ascertain what assistance if any, the injured party needs, and then the driver must make a reasonable effort to see that such assistance is provided whether through himself or third parties. Such duty is not satisfied where the driver flees the scene without making any inquiry or other investigation regarding the victim.id: 15506
The prosecution had no duty to discover the existence of additional pyramid scheme charges not provided to police by the victims.Defendants were convicted of operating an endless chain scheme in violation of Penal Code section 327. During trial, the prosecution came into possession of other charts providing additional details of the pyramid, Defendants argued the prosecutor abused the discovery process by failing to obtain these charts earlier. However, the prosecution had no duty to discover the existence of, or to seek or obtain, additional charts not provided to the police by the victims. The trial court properly denied the request for dismissal or sanctions.id: 15507
The trial court did not err in failing to instruct that mere participation in an endless chain scheme does not violate section 327.Defendants were convicted of violating Penal Code section 327 which prohibits the contriving, preparing, setting up, or operating an endless chain scheme. They argued the trial court erred in failing to instruct the jury that participation in an endless chain is not a violation of section 327. However, the evidence showed the defendants were engaged in operating the endless chain scheme. Further instruction on what was not included in the ambit of the statutory prohibition was unnecessary. Moreover, the evidence supported the verdicts and the fact that other persons may have been "chairmen" and filled out charts did not detract from the guilt of the defendants.id: 15509
"Newjack", which is similar to "Blackjack", is likewise prohibited by Penal Code section 330."Newjack" is a form of another card game called "21" or "Blackjack." Penal Code section 330 prohibits the playing of 21 for money. Newjack is not one of the games specifically mentioned in section 330. Nevertheless, Newjack is prohibited by section 330 because the rules show the game has the potential to be played as a banking game.id: 15491
A person need not have a supervisory role in order to "operate" a chop shop within the meaning of section 10801.Defendant argued there was insufficient evidence to support his conviction of operating a chop shop within the meaning of Vehicle Code section 10801. However, contrary to defendant's claim, the law does not require a defendant have a supervisory role in the chop shop. All that is required is a showing that he was actively involved in the shop's operation. The evidence showed defendant was involved in various activities relating to the operation of the chop shop, and the evidence supported his conviction.id: 15492
An adverse possessor who rents the property may be convicted of rent skimming.Defendant took over residential real property that he believed had been "abandoned" by the property owner and then defendant rented the property on his own behalf. While it is true that an adverse possessor may rent the property, it is not true that the adverse possessor cannot be guilty of rent skimming under Civil Code section 290.id: 15494
Court did not err in failing to instruct on the affirmative defense of accident or mistake with regard to the offense of discharging a pollutant into navigable waters.Defendant argued the court erred in failing to instruct the jury on the affirmative defense of accident or mistake with regard to the offense of discharging a pollutant into navigable waters. However, knowledge that a material is a pollutant is not an element of the offense, and thus a mistake of law concerning the matter is not a defense.id: 15495
Court did not err in failing to provide a clarifying instruction on the term "point source" in a case involving the discharge of pollutants into navigable waters.Defendant was convicted of discharging pollutants into navigable waters in violation of Water Code section 13387, subd.(c). The jury received instructions on the meaning of the terms "pollutant" "navigable waters," and "discharge of a pollutant." The latter term was defined as "any addition of any pollutant to navigable waters from any point source." However, the term is commonly understood, and defendant did not request a clarifying instruction. Moreover, any error was harmless where there was no factual dispute regarding the point source.id: 15496
False personation statute does not require a specific intent to subject the impersonated person to liability for suit or prosecution or to secure a benefit for any person.Penal Code section 529, paragraph 3 prohibits false personation. The Court of Appeal erred in finding the provision requires an intent to subject the impersonated person to liability for suit or prosecution, or to secure a benefit for any person. By its terms the provision is violated when one intentionally falsely personates another and, in such assumed character, does <U>any</U> act that might cause the liability or benefit described in the statute. It requires the existence of no intent beyond that plainly expressed on the face of the statute.id: 15501
Statute prohibiting loitering in a public place with intent to commit prostitution is neither vague nor overbroad.Defendant was convicted of loitering in a public place with intent to commit an act of prostitution under Penal Code section 653.22. The provision does not violate due process since it provides adequate notice of the proscribed activity and adequate enforcement guidelines. Moreover, because section 653.22 criminalizes the conduct of loitering with intent to commit prostitution, which may constitutionally be prohibited, and does not on its face prohibit "a substantial amount of constitutionally protected conduct," it is overbroad.id: 15259
Defendant who produced "crush videos" in which rodents were tortured and killed was properly convicted of cruelty to animals under section 597, subd.(a).Defendant was convicted of cruelty to animals (mice, rats and newborn mice) in violation of Penal Code section 597, subd.(a). He produced "crush videos" depicting the crushing of the rodents under the feet of provocatively dressed women. He argued his conduct did not fall within the reach of section 597 because of other laws which permit the eradication of rodents which cause a health hazard. However, no law permits the unnecessary torture of these animals especially where the torture is motivated by profit and the sexual gratification of others.id: 14871
Prosecution must prove its case for gang related injunction by clear and convincing evidence.The District Attorney sought to enjoin 28 named members of the Posole street gang from engaging in various lawful activities. The trial court erred in deciding the case on a preponderance of the evidence rather than a clear and convincing evidence standard of proof. Because the gang injunctions impose severe restriction on basic freedoms they demand a higher standard of proof than other civil actions.id: 14882
The surreptitious videotaping of sexual activity violates California's privacy statutes.Without obtaining consent of the women, defendant videotaped sexual encounters utilizing a video camera which he had hidden in the closet. This activity violated the privacy provisions of Penal Code section 630 and 632. Moreover, application of the statutes to defendant did not violate his due process rights since there could be little doubt that in recording the sexual activity without the woman's consent, he was violating her right of privacy and that common social duty would suggest more circumspect conduct.id: 10542
Evidence supported a finding that appellant attempted to expose himself despite the fact that the victim did not actually see his genitals.Appellant argued the burglary conviction could not stand because there was insufficient evidence that he had the requisite specific intent to commit felony indecent exposure. He argued that since the victim did not see his genitals he did not intend to expose himself. However, the victim started yelling before appellant, who was nude, could enter the room. That the bedroom dresser blocked her view of his genitals did not show a lack of intent. Moreover, the finding of intent was not based on speculation or conjecture where it was determined appellant's modus operandi was to break into the homes of women at night while nude and awaken women to expose himself.id: 10508
Evidence supported civil rights violations where defendant shot at black youths after hurling racial insults at them.Defendant was convicted of civil rights violations under Penal Code section 422.6 and 422.7. A conviction under these sections requires proof of a specific intent to deprive an individual of a right secured by federal and/or state law. The right to be free from threat or violence is clearly within the purview of these provisions. The court could reasonably find that the white defendant's brandishing of the rifle against a 12 year old black victim followed by his shooting of the young boy's cousin constituted acts of violence and intimidation motivated by racial hatred. This is especially true given the blatantly racial epithets hurled at them in the minutes preceding the attack. That the victims had been trespassing or fishing in an area where such activity was prohibited did not compel a different result.id: 10509
Hate crime enhancement, section 422.75 does not contain a specific intent requirement.Penal Code section 422.75, part of the hate crime legislation, increases the punishment for a felony motivated by prohibited bias, without reference to the perpetrator's seeking any further consequence. Contrary to the substantive offenses listed in sections 422.6 and 422.7, the section 422.75 enhancement does not contain a specific intent requirement.id: 10516
Hate crime statute, section 422.7, protects the right to be free from any violence or threat of violence because of membership in a protected group.Defendant was convicted of committing a hate crime pursuant to Penal Code section 422.7. He argued the instruction defining the crime was legally erroneous because section 422.7 does not protect the right to be free of the threat of violence. However, both its plain meaning and legislative history reveal that section 422.7 was expressly intended to protect, among other things, the right to be free from any violence or threat of violence committed because of one's membership in a protected group.id: 10517
Hazardous Waste Act does not provide that evidence shall be excluded for failure to use a certified laboratory.Defendant argued his convictions for violating the Hazardous Waste Act must be reversed because the laboratory which performed the chemical analyses in the case was not certified by the Department of Toxic Substances Control. However, the relevant statutes do not specifically provide that evidence shall be excluded for failure to use a certified laboratory.id: 10518
Illegal sale of liquor license provision is a criminal statute.Defendant was convicted of violating Business and Professions Code section 24079<197>transfer of restricted liquor license for consideration in excess of statutory amount. He argued the statute was not penal because it did not include the words unlawful or illegal. However, the Alcohol Beverage Control Act was enacted for the prosecution of the safety, welfare, health, peace and morals of the people. That is enough to suggest penal sanctions were intended.id: 10519
In a prosecution for keeping a mischievous animal the instruction that a minor need not take precautions was not improper.Defendant was convicted of involuntary manslaughter and keeping a mischievous animal (Penal Code section 399) after his pit bull killed a small child in defendant's yard. He argued that the court erred in instructing the jury that a minor under the age of five years is, as a matter of law, not required to take any precautions which a reasonable person would take in the same situation. However, where the prosecution proves the victim lacked the capacity to take available precautions it need not prove that the victim failed to take such reasonable precautions and the jury need not be instructed to so find.id: 10520
Lack of permission is not an element of the crime of vandalism.Minor was found by the juvenile court to have committed vandalism in violation of Penal Code section 594. He argued lack of permission is an element of vandalism, and the People failed to prove he had no permission to paint on the building wall. However, lack of permission is not an element of the offense, and the amendment of section 594(a) did not make it an element.id: 10523
Misdemeanor hit and run is subject to disposition by way of a civil compromise.A misdemeanor hit and run charge under Vehicle Code section 20002, subdivision (a) (which involves property damage only) is subject to disposition by way of a civil compromise under Penal Code section 1377.id: 10525
New Vehicle Code provision regarding exclusionary rule for evidence obtained in speed trap applies retroactively.Vehicle Code sections 40803-40805 provide a statutory exclusionary rule for evidence obtained in speed traps. The Legislature recently passed section 40808 which provides subdivision (d) of section 28 of Article 1 of the California Constitution (Proposition 8's Truth-in-Evidence) shall not be construed as abrogating the evidentiary provisions of this article. The new statute should be applied to cases pending before its passage.id: 10526
Passenger in a lawfully stopped car may be cited for not wearing a seat belt.A passenger in a car is properly citable for not wearing a seat belt, a violation of Vehicle Code section 27315, when a police officer lawfully stops the car for a traffic violation and sees the passenger is not wearing a seat belt.id: 10527
Publicly owned treatment works is not a permitted facility for the purpose of accepting hazardous waste through sewage lines.Defendant, the owner of a metal plating plant, was convicted of six violations of the Hazardous Waste Control Act. He argued the Act permits the discharge of hazardous wastes into a sewer system which is serviced by a publicly owned treatment works (POTW). However, California has not adopted an unrestricted domestic sewage exemption. Moreover, the POTW is not a permitted facility for the purpose of accepting hazardous waste through sewage lines.id: 10530
Removal of hazardous waste was not legally impossible after defendant had been evicted from the premises.Defendant was charged with unlawfully disposing of hazardous waste in violation of Health and Safety Code section 25189.5(a). As a defense he claimed legal impossibility<197>that is, once evicted from the manufacturing premises, he had no legal means of access to the premises to see to a lawful removal and riddance of the drums of hazardous waste. However, evidence supported the magistrate's finding that defendant had continued access to the premises for the purpose of removing the waste and that he represented to the landlord after vacating the premises that he intended to remove the hazardous waste from the manufacturing site.id: 10532
Restrained party is not denied due process in that the protected party can entrap him or her by inviting the party over and then call the police.Defendant argued that the instruction pursuant to Penal Code section 13710, subdivision (b), which provides the terms of a protective order remain enforceable notwithstanding the conduct of the parties deprived him of due process of law because the complaining party can entrap the subject by inviting him over while the order is in effect, and then call the police. However, there are procedures available for dissolving protective orders if the behavior of the protected party casts doubt in the mind of the restrained party as to whether the former has had a change of heart prior to the expiration of the order. These procedures protect the due process rights of the parties.id: 10533
Statute permitting revocation of driver's license where a vehicle is used as an assault weapon applies to misdemeanor convictions.Juvenile court found the minor assaulted two victims with a deadly weapon (an automobile) in violation of Penal Code section 245, subdivision (a)(1), which, as a condition of probation subjected him to the mandatory revocation of his driver's license pursuant to Vehicle Code section 13351.5. Contrary to the minor's claim, section 13351.5 applies to misdemeanor convictions. Moreover, the provision is not contrary to the rehabilitative goals of the juvenile court law.id: 10536
Providing in California of preoperative and postoperative care surrounding a sex change operation in Mexico supported the conviction of felonious unlicensed practice of medicine.Defendant's license to practice medicine was revoked in 1977. He performed a sex change operation on a patient in Mexico. Evidence supported his conviction of felonious unlicensed practice of medicine under Business and Professions Code section 2053 based on the preoperative and postoperative care he provided in California. His argument that the California treatment merely consisted of dispensing some Tylenol with codeine and the changing of bandages was unpersuasive. So too was his skepticism that the possibility of an infection, which can readily be treated with antibiotics, falls within the rubric of great bodily harm contemplated by section 2053.id: 10483
"Because of" in hate crime statutes is satisfied if the prohibited bias was a substantial factor in the commission of the crime.The minors argued the phrase because of as used in the hate crime statutes, Penal Code sections 422.6 and 422.7, is unconstitutionally vague in that it fails to provide either adequate notice of the nature of the prohibited motive or sufficient guidelines for law enforcement. However, a crime with multiple concurrent causes is still done because of bias and properly chargeable under section 422.6 and 422.7, if the prohibited bias was a substantial factor in the commission of the crime. The phrase is not unconstitutionally vague.id: 10484
A violator need not physically move hazardous waste to abandon it.Defendant was charged with unlawfully disposing of hazardous waste pursuant to Health and Safety Code section 25189.5(a). He argued that abandonment of waste under the statutory scheme required that a violator move the waste or drop it elsewhere. However, one can abandon waste for purposes of the statute without an affirmative relocation of the waste.id: 10487
Any definitional error in mischievous dog instruction was harmless where defendant's pit bull killed a small child.Defendant was convicted of keeping a mischievous animal (a pit bull) under Penal Code section 399. He argued the court's instruction on mischievous would include an animal whose owner has no reason to think might injure someone, but is mischievous because its barking annoys others. However, defendant conceded that the fact mischievousness was irrefutably established by the fact that the dog killed the child. Any definitional flaw in the instruction was therefore harmless.id: 10489
Appellant's verbal barrage and placing the principal in a headlock constituted disruptive presence at a school.Appellant cursed the principal, held her in a headlock and acted in a belligerent fashion when asked to leave the campus and wait outside. He was properly convicted of disruptive presence at a school under Penal Code section 626.8, subdivision (c)(2).id: 10491
Before citing appellant for driving with illegally tinted windows officer was not required to demonstrate special training in the area of tinted windows.Appellant was convicted of driving with illegally tinted driver's side windows. He argued the evidence was insufficient to support his conviction since there was no showing that the officer was specially trained in the area of tinted windows. While the officer admitted having no formal training in the area, he stated that his looking through the windows from where he stood outside the vehicle, his vision was obstructed. Such testimony was sufficient to support the conviction.id: 10493
Conviction of two counts of attempting to buy a person was proper where defendant's attempts to purchase the victim were separated by two days.Defendant argued his conduct did not support conviction of two counts of attempting to buy a person because he engaged in a continuous course of conduct related to the purchase of a single victim, at the same location, by use of the same words. However, the offenses were separated in time buy a period of two days and defendant's repeated and persistent conduct merited additional punishment.id: 10495
Court did not err in failing to define the term commercial purposes.Defendant argued the court erred in failing to define commercial purposes when instructing the jury that defendant was charged with conspiracy to violate Fish and Game Code section 8305, which states that it is unlawful to take abalone for commercial purposes. . . . However, the phrase commercial purposes is commonly understood and did not require an explanatory instruction.id: 10496
Defendant was properly convicted of failing to stop and report an injury-producing accident notwithstanding that his conduct was intentional.Defendant was convicted of violating his duty to stop and report an injury-producing accident pursuant to Vehicle Code section 20001, subd. (b)(1). He argued that because his conduct was intentional he was not involved in an accident within the meaning of the statute. However, section 20001 applies to all drivers of vehicles involved in injury-producing events. Moreover, holding defendant criminally liable for failing to comply with the provision did not violate his Fifth Amendment privilege against self-incrimination. Finally, the court had no sua sponte duty to instruct the jury on the meaning of the word accident.id: 10498
Defendant knowingly disposed of the hazardous waste where he vacated the manufacturing premises leaving the waste materials behind.Defendant argued that he could not be convicted of improperly disposing of hazardous waste under Health and Safety Code section 25189.5 because subdivision (b) of that section requires that any such disposal be done knowingly and the record was clear that he did not know that his action of abandonment constituted an unlawful disposal. However, there was no question but that defendant was aware of the actual facts surrounding his vacating of the manufacturing premises and his permanently leaving behind hazardous waste materials.id: 10500
Disposal of hazardous waste provision gave fair warning of the prohibited conduct.Defendant was charged with unlawfully disposing of hazardous waste pursuant to Health and Safety Code section 25189.5(a). He argued a due process denial in that the provision failed to give fair warning of the prohibited conduct. However, in light of the fact that section 25113 explicitly defines disposal as including abandonment common social duty would have suggested a more circumspect conduct than simply walking away from almost 200 drums of unlabeled hazardous liquid wastes without providing for their lawful disposal.id: 10503
Enumeration of additional rights did not render hate crime instruction overly broad where the court specifically focused the jury's attention.The court's basic instruction on the hate crime statute, Penal Code section 422.7 specifically required the jury to find defendant brandished a gun at the victim in violation of his right to be free from the threat of violence. Defendant argued the court's enunciation of further rights under Civil Code section 43 including the right to be free from personal insults (although some insults are protected speech) rendered the basic instruction on section 422.7 overly broad. However, by specifically focusing the jury's attention and the determinative process, the instruction eliminated any real possibility the jury might have been confused and misled by the court's additional enunciation of rights.id: 10505
The confidence scheme engaged in by defendant was not a fraudulent game proscribed by section 332 and defendant was properly charged under the general felony conspiracy to defraud statutes.Defendant was convicted of conspiracy to defraud another of property by theft (Penal Code section 182, subdivision (a) (4)), a felony. He argued the confidence scheme for which he was convicted, the Jamaican Switch, should have been charged under the special statute criminalizing confidence games, Penal Code section 332, a misdemeanor under the instant facts, rather than the more general felony conspiracy statute. However, section 332 prohibits cheating to obtain money or property of a victim by game, device, slight of hand or trick by use of cards, or other instruments or implements. A Jamaican Switch is not a game of any kind. It is a scheme to defraud a victim of money or property.id: 10404
Defendant may properly be convicted of carjacking where the victim is not physically present in the vehicle.Defendant was convicted of carjacking under Penal Code section 215. The victim had been lured into a hotel room by a woman believed to be a prostitute. Once in the room he was handcuffed by the woman while defendant and another man emerged from the bathroom. The two men beat the victim, took his money and car keys, and left with the car. Defendant argued the concept of immediate presence cannot be applied to carjacking in the same manner it is applied to robbery and that actual physical proximity to the vehicle is required. However, because of the immediate presence requirement the victim need not be physically present when the confrontation occurs. Evidence supported the conviction as the only reason the victim was not in the car was that he had been lured away from it by trick or device. The immediate presence requirement was satisfied.id: 10097
A rooster or other bird falls within the statutory definition of "every dumb creature" and thus qualifies as an animal for purposes of the cruelty to animals statute.Defendant was convicted of cruelty to animals under Penal Code section 597, subds.(a) and (b). He argued the word "animal" as used in these provisions does not apply to roosters injured or killed in cockfighting. However, the word "animal" unambiguously includes a rooster or other bird.id: 9900
Defendant's repeated approaches of the child's mother supported a conviction of attempting to buy a person.Defendant was convicted of attempting to buy a person pursuant to Penal Code section 181. He argued his conduct amounted to nothing more than preparation and did not constitute an attempt. However, defendant repeatedly approached the mother and asked her to sell or give the child to him. The mother testified defendant was frightening and clearly was referring to her child. This conduct went beyond mere preparation. But for the mother's resolute refusal of defendant's overtures, the crime would have been committed.id: 9667
The hate crime statute provides adequate notice of the prohibited conduct regardless of the simplicity of proving the necessary intent.Defendant argued Penal Code section 422.7, the hate crime statute is void for vagueness because it does not adequately inform anyone of what behavior is prohibited. He claimed the intent can be established simply by proving the defendant deprived the victim of the right to be free of crime. Thus, the specific intent required by section 422.6 collapses into the determination of mens rea for the underlying offense. However, regardless of whether it is a simple matter to prove necessary intent, section 422.6 requires it and thereby provides adequate notice of what conduct is proscribed.id: 9515
Hate crime statute does not deny equal protection and properly punishes the discriminatory violent offender more harshly than the random violent offender.Defendant argued Penal Code section 422.7 denied him equal protection of the law in that it punishes the discriminatory violent offender more harshly than the random violent offender. However, contrary to defendant's argument the distinction drawn by the statute between random and bigoted perpetrators of violent conduct is not subject to strict judicial scrutiny but violates the equal protection guarantee only if it is not rationally related to a legitimate governmental interests. The statute is rational and reasonably related to legitimate state interests in both curbing hate crimes and providing protection against the special harms they inflict on individual victims, their communities and society at large. Thus, the perpetrators of violent acts who select their victims because of their status and those who select victims randomly are not similarly situated.id: 9533
Municipal ordinance regulating the consumption of alcohol in public was valid despite the improper portion of the provision regarding possession of alcohol.An Oakland municipal ordinance proscribed the consumption or possession of alcohol in a public place. The ordinance was the basis for the determination of defendant. It was determined that Oakland had the authority to regulate consumption of alcohol, but the regulation of possession was pre-empted by the exclusive power of the state. However, the portions were found to be severable and the related version was found to be capable of independent existence. As reconstructed the ordinance was valid and was properly used as a basis for detaining defendant.id: 9491
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850