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CRIMINAL LAW EXAM 2
HUNT CHAPTERS 8 - 18
CHAPTER 8: OFFENSES AGAINST THE PUBLIC PEACE
CHAPTER 9: DANGEROUS WEAPONS CONTROL LAWS
CHAPTER 10: TYPES OF ASSAULT
CHAPTER 11: HOMICIDES
CHAPTER 12: FALSE IMPRISONMENT, RESTRAINT CRIMES, KIDNAPPING, CHILD ABDUCTION, RAPE, UNLAWFUL SEXUAL INTERCOURSE
CHAPTER 13: PUBLIC SAFETY AND MORALS
CHAPTER 14: BURGLARY
14.1 BURGLARY DEFINED
Burglary Defined—PC 459.
“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, etc., railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach as defined in Section 635 of the Vehicle Code, any house car as defined in Section 362 of the Vehicle Code, inhabited camper as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”
Elements of Burglary.
1. Entry (actual or constructive).
2. Of a building or structure (as defined in PC 459).
3. Or a vessel, as defined in the Harbors &Navigation Code.
4. Or a vehicle (when the doors are locked), trailer coach, house car or inhabited camper, each as defined in the Vehicle Code.
5. Or an aircraft, as defined in the Public Utilities Code.
6. With specific intent to commit (a) grand or petty theft or (b) any felony.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 213).
Houses Under Construction.
Questions often arise as to the possibility of burglarizing a house or building under construction. The test is usually the Stickman case, previously discussed. It is assumed that if the structure has a roof and walls on all sides, whether either is permanently covered, a burglary could be committed, especially if the building could be secured. However, a building which consists of only framing, without some covering, insecure and impermanent as it may be, would ordinarily not be the subject of a burglary.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 216).
14.3 14.3 THE INTENT IN BURGLARY
In all cases of burglary, there must be a specific intent to commit a theft, either grand or petty, or a felony within the structure burglarized. No other intent, however strong it may be, will suffice. The perpetrator’s intent may be inferred, in most cases from the facts and circumstances surrounding the commission of the crime. Thus, an entry into a structure with the intent to commit an act denounced by PC 288a (forced oral copulation) constitutes the crime of burglary if it can be inferred that the defendant’s conduct was such as to enter with the specific intent to consummate this sex crime (People v. Bias, 170 Cal. App. 2d 502).
Similarly, a prima facie case of burglary is established when a defendant enters a dwelling in the nighttime and seizes a female who is asleep and then runs away after the victim screams. In this case it may be inferred from the facts and circumstances present that the accused entered with the intent to commit rape (People v. Nanez, 84 Cal. App. 2d 778). Although the burden is on the prosecution to prove a specific intent to commit a felony within a structure, in the above two cases such intent might reasonably be inferred from the unlawful entry alone.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 214 - 215).
Current Statutory Provisions.
As indicated in PC 459, California law requires only entry, whether forced or not, as long as the perpetrator had the requisite intent (i.e., to commit grand or petty theft, or any felony), at the time he or she entered one of the numerous structures, places or vehicles listed in PC 459. It is not necessary that the crime of burglary be committed at nighttime, as was the provision at common law. See degrees of burglary PC 460.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 213).
14.4 STRUCTURES SUBJECT TO BURGLARY
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 215).
Motor Vehicles.
The statute defining burglary specifically states that a vehicle may be the subject of burglary only when it is a vehicle as defined by the Vehicle Code and when the doors are locked. The courts have held that a vehicle is locked where one of its widows was rolled down about three inches (In re James B., 109 Cal. App. 4th 862). However, in People v. Malcolm (47 Cal. App. 3d 217), the court held that a vehicle was “locked,” where the doors were locked, all the windows were rolled up, but the wind-wing window lock was broken.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 216 - 217).
Automobile Trunk Burglary.
Where the victim reported that he had left his vehicle parked and locked, forcible entry of the trunk by prying it open, in order to steal from within, constituted an automobile burglary, notwithstanding that the passenger compartment may not have been entered. (People v. Toomes, 148 Cal. App. 2d 465.)
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 217).
14.5 DEGREES OF BURGLARY
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 217).
14.6 PUNISHMENT FOR BURGLARY
Punishment—PC 461.
Burglary is punishable as follows:
1. Burglary in the first degree: by imprisonment in the state prison for 2, 4 or 6 years.
2. Burglary in the second degree: by imprisonment in the county jail or in the state prison.
Probation—PC 462(a).
“Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach … or the inhabited portion of any other building.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 218).
14.8 POSSESSION OF BURGLARY TOOLS—UNAUTHORIZED KEYS—DEVICES
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 218).
14.9 UNLAWFUL FORCED ENTRY
Forcible Entry and Destruction of Property—PC603.
“Every person other than a peace officer engaged in the performance of his duties as such who forcibly and without consent of the owner, representative of the owner, lessee or representative of the lessee thereof, enters a dwelling house, cabin, or other building occupied or constructed for occupation by humans, and who damages, injures, or destroys any property of value in, around or appertaining to such dwelling house, cabin or other building, is guilty of a misdemeanor.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 220).
CHAPTER 15: ROBBERY AND EXTORTION
15.1 ROBBERY DEFINED
Robbery Defined—PC 211.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 225).
The essential elements (corpus delicti) of robbery include:
1. Taking (theft) of personal property of some value in the possession of another (asportation).
2. From the person or immediate presence of the victim.
3. Against victim’s will (without consent).
4. Accomplished by means of force or fear (violence or threatened violence).
5. Intent to permanently deprive the owner of possession or withhold possession for so long a time as to diminish the value to the owner.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 225).
Fear as a Means of Robbery—PC 212.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 226).
Return of Property.
Once the act of asportation has occurred the crime is complete and it is no defense that the property was returned, not even if the restitution occurred directly after the taking (People v. Tipton, 96 Cal. App. 2d 840).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 227).
15.3 OWNERSHIP AND VALUE OF PROPERTY
In robbery, the amount and value of an item of personal property taken by the perpetrator is immaterial. If all other elements of the crime are present, the offense is complete though the value of the property be slight (People v. Simmons, 28 Cal. 2d 699). However, as in the crime of theft, the property itself must have some legal value.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 227).
TANGIBLE
INTANGIBLE
15.4 MISCELLANEOUS ASPECTS—INCREASED PENALTY
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 228).
Carjacking—PC215.
Taking a motor vehicle, from a person’s possession or immediate presence, against his will, intending permanent or temporary deprivation, by force or fear, is a felony punishable by three, five or nine years in prison.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 228).
Armed With Firearm or Deadly Weapon—PC 12022.
If any person committing a felony is armed with a firearm, every principal is subject to an additional sentence “enhancement” (one additional year for most firearms, three years for assault weapons or machine guns).
Every person who personally uses a deadly or dangerous weapon to commit a felony is subject to a one-year enhancement (unless such use is an element of the underlying felony).
Additional terms of three to five years are added for personal arming with a firearm in specified narcotics offenses (see PC 12022(a)(1)(c)).
Use of Firearm—PC 12022.53.
Personal use of a firearm during a robbery (or during other specified felonies) adds a mandatory, consecutive term of ten years of imprisonment; personal discharge of a firearm during the robbery requires a consecutive twenty year term; and if great bodily injury results (other than to an accomplice), an enhancement of twenty-five years to life applies.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 228).
15.6 EXTORTION DEFINED
Extortion Defined—PC 518.
“Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 228).
The Element of Consent.
Consent in extortion is more in the nature of a choice. Thus, while the victim of extortion does not wish to voluntarily part with his property, he generally has the choice to do so or suffer the consequences of being subjected to accusations, unlawful injury, or the exposing of some criminal offense. It doesn’t matter if the information the perpetrator threatens to reveal is true or not.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 229).
CHAPTER 16: THEFT AND EMBEZZLEMENT
16.1 THEFT DEFINED
Theft Defined—PC 484.
“(a) Every person who shall feloniously steal, take, carry, lead or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor, or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile [business] character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains the labor or service of another, is guilty of theft.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 235).
Determining Value of Property—PC 484.
“(a) In determining the value of the property obtained, for purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received, the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 235).
TANGIBLE
INTANGIBLE
Diversion of Money Received for Labor or Materials—PC 484b.
“Any person who receives money for the purpose of obtaining or paying for services, labor, materials, or equipment and willfully fails to apply such money for such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense [felony wobbler].”
Note: If the amount diverted is less than $250 the person is guilty of a misdemeanor. This type of funds diversion is typical of some unethical contractors who are given money to pay for building materials, etc., but instead put the funds to their own use.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 236).
Value of Property Taken.
To determine the value of the property taken, the reasonable and fair market value is the test. In determining the value of services received, the contract price shall be the test. If there is no contract price, the reasonable and going wage for the service rendered shall govern.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 236).
Property Subject of Theft.
In order for property to be capable of being stolen, it must have some genuine market value, whether intrinsic or extrinsic. Thus it has been held that the theft of a lottery ticket has an initial market value of its cost. If, however, it is a winning ticket, it has a market value equal to the prize which it represents (People v. Gonzales, 62 Cal. App. 3d 274).
Real property (land and buildings) as well as personal property may be the subject of theft. Thus where a fixture, which is part of a building is removed and stolen, it is theft.
Dogs are legally considered personal property under PC 491 and may be the subject of theft. However, cats are generally not placed within this category unless some legal value (such as a pedigreed show animal) can be established, the theory being that cats are not personal property since no license fees are paid on them.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 236).
16.2 THE ACT OF TAKING IN THEFT
Caption and Asportation Defined.
The act of taking in theft consists in taking and carrying away the property of another, not taking or carrying away. The “taking” of property includes two elements—“caption” (which refers to gaining possession of the property) and “asportation” (which means carrying the property away).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 236).
16.8 THEFT BY EMBEZZLEMENT
Embezzlement Defined—PC 503.
“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”
Embezzlement by Clerk—PC 508.
“Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent or servant, is guilty of embezzlement.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 239 - 240).
Restoring Property as Defense—PC 512.
“The fact that the accused intended to restore the property embezzled, is no ground of defense or mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.”
Note: If the embezzler does replace or restore the embezzled money or property before charges are filed (as per PC 512, above) it is no defense to the crime, but the court may mitigate punishment at its discretion (PC 513).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 240).
16.10 THEFT OF LOST PROPERTY
Appropriation of Lost Property—PC 485.
“One who finds lost property, under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him, is guilty of theft.”
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 242).
Finder of Lost Property.
The Civil Code provides the manner in which one who has found lost property should pursue a legal course of action in attempting to restore such property to its rightful owner.
Duty of Finder—Civil Code 2080.
“Any person who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depository for the owner, with the rights and obligations of a depository for hire. Any person who finds and takes possession of any money, goods, things of action, or other personal property, or saves any domestic animal from drowning or starvation shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property.”
Unknown Owner—Civil Code 2080.1.
“If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time, turn the property over to the police department of the city, if found therein, or the sheriffs department if found outside the city limits, and shall make an affidavit stating when and where he or she found or saved the property, particularly describing it. If the property was saved, the affidavit shall state:
1. From what and how it was saved.
2. Whether the owner of the property is known to the affiant.
3. That the affiant has not secreted, withheld, or disposed of any part of the property.
(b) The police department or the sheriffs department shall notify the owner, if his or her identity is reasonably ascertainable, that it possesses the property and where it may be claimed. The police department or sheriffs department may require payment by the owner of a reasonable charge to defray costs of storage and care of the property.”
Claiming Property—Civil Code 2080.2.
If the owner appears within ninety days and proves his ownership and pays all reasonable charges, the police department or sheriffs department shall restore the property to him.”
Finder Gets Title—Civil Code 2080.3.
If no owner of the property valued at $250 or more appears within ninety days, the police or sheriffs department shall publish at least once in a newspaper notice of the found or saved property. If after seven days following the notice, no owner appears and proves ownership, then title shall vest in the person who found or saved the property. If the property was found by an employee of any public agency, the property shall be sold at public auction. Title to unclaimed property valued below $250 vests in the finder after 90 days, without publication.
16.11 DEGREES OF THEFT
Degrees of Theft—PC 486.
“Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.”
Grand Theft Defined—PC 487.
“Grand theft is theft committed in any of the following cases:”
1. Money, Labor, Personal Property. When the money, labor, or real or personal property taken is of value greater than four hundred dollars ($400), or theft is committed in any of the following cases, it is grand theft.
2. Fowls, Farm Products. When domestic fowls, avocados, olives, citrus or other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value greater than $250 it is grand theft. Note: To establish that the value of avocados or citrus fruit exceeds $250, the wholesale price on the day of the theft is used.
3. Aquaculture Products (grown in water). When fish, shellfish, mollusks, crustaceans, kelp, algae or other aquaculture products are taken from a commercial operation exceeding $250 in value, it is grand theft.
4. Theft by Employee, etc. Where money, labor, or real property (real estate) or personal property is taken by a servant, agent, or employee of the victim, and totals $950 or more in any 12 consecutive month period, it is grand theft.
5. Grand Theft From Person—Value of Property. Property taken from the person of another constitutes grand theft. This is true regardless of what is taken as long as it has any value whatever. Theft of an empty wallet by a pickpocket would be grand theft on the theory that the wallet itself would have some value, even if small. Theft of a bus token worth but a few cents, if taken from the person, would also be grand theft.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 243).
Petty Theft Defined—PC 488.
This section defines the crime of petty theft and reads simply: “Theft in other cases is petty theft.” This means that theft in California must be either “petty” or “grand.” If the theft does not meet the criteria for grand theft (see PC 487) because of the amount of money or property stolen or the manner in which the theft was committed, it is deemed to be petty theft. In other words, if it’s not grand theft, it’s petty theft.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 244).
Value of Property Taken.
The market value of property for determining petty or grand theft, is the “fair market value” at the time and place where the property was stolen (People v. Simpson, 26 Cal. App. 2d 223).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 244).
16.12 PUNISHMENT FOR THEFT
Grand Theft Punishment—PC 489.
“Grand theft is punishable as follows:
(a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years.
(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.”
Petty Theft Punishment—PC 490.
“Petty theft is punishable by a fine not exceeding one thousand ($1,000) dollars, or by imprisonment in the county jail not exceeding six months, or both.”
Embezzlement of Public Funds Punishment—PC 514.
If the embezzlement is of public funds of the United States, or of this state, or any county or municipality within this state, the offense is a felony, and is punishable by imprisonment in the state prison; and the person so convicted is ineligible thereafter to hold any office of honor, trust, or profit in this state.
16.13 PETTY THEFT PRIOR CONVICTIONS
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 244 - 245).
16.15 RECEIVING OR CONCEALING STOLEN PROPERTY
Receiving or Concealing Stolen Property—PC 496.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 247).
Evasion of Utility Payments—PC 498.
Any person who with intent to obtain for himself or herself utility services without paying the full lawful charge therefor, or with intent to enable another person to do so, is guilty of a misdemeanor.
“Utility” means any electrical, gas, or water corporation as those terms are defined in the Public Utilities Code.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 248).
Unauthorized Computer Access—PC 502.
This section make it a felony (wobbler) to make unauthorized access to a computer or electronic information network and knowingly copy, damage, destroy, contaminate or corrupt information stored there.
Fraudulently Obtaining Telephone Services—PC 502.7.
This section makes it a criminal offense to use any device, code, mechanism, access card or technique whatever, to make local or long distance telephone calls without paying for same. If the total value of the phone service fraudulently received is over $400, the crime is a felony (wobbler). A second conviction under this section is a felony. If the stolen service totals $400 or under, the crime is a misdemeanor.
Unauthorized Cable Television Connection—PC 591.
This section makes it a felony (wobbler) to remove or sever any cable TV lines or to remove or sever any telephone or telegraph lines. PC 593(d) contains a comprehensive scheme for penalizing unauthorized interception of cable TV programming.
Possession or Sale of Pirated Recordings—PC 653w.
Any person who trafficks in pirated audio or video recordings that do not show the identity of the maker of the unauthorized copy is guilty of a misdemeanor (first offense) or felony wobbler (subsequent offenses or any offense involving 100 or more articles).
Recording Motion Picture—PC 653z.
It is a misdemeanor (one year/$2500 fine) to make an unauthorized recording of a motion picture in a theater.
Internet Piracy—PC 653aa.
It is a misdemeanor for an adult to disseminate by electronic means any copyrighted recording or audiovisual work to more than 10 other people without disclosing the title of the work and the sender’s email address. A minor’s first and second offenses are infractions; third and subsequent offenses by a minor are misdemeanors.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 248).
16.18 DEFRAUDING AN INNKEEPER
PC 537.
This section makes it a crime for any person to obtain any food or accommodations at any hotel, inn, restaurant, boarding house, lodging house, apartment house, bungalow court, motel, or auto camp, ski area, or public or private camp ground, without paying therefor, with intent to defraud the proprietor or manager thereof.
If the value of the credit, food, or accommodations is $950 or less, the crime is a misdemeanor. If over $950, the crime is a felony (wobbler).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 250).
CHAPTER 17: CONTROLLED SUBSTANCE AND ALCOHOL ABUSE CRIMES
CHAPTER 17 CONTROLLED SUBSTANCE AND ALCOHOL ABUSE CRIMES
17.1 CONTROLLED SUBSTANCES ACT
Most drug crimes are found in Division 10 of the Health and Safety (H&S) Code (beginning with Section 11000), which is entitled the Uniform Controlled Substances Act. This act covers such offenses as possession, sale, transportation, manufacture, furnishing, administering, possession of paraphernalia, under the influence, cultivation, etc., of controlled substances. A few drug and alcohol related laws are also found in the Penal Code, Vehicle Code and the Business and Professions (B&P) Code.
The Uniform Controlled Substances Act covers the legal as well as the unlawful use of controlled substances. For example, treatment of addicts, prescription requirements, offenses and penalties, are all described in this Act.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 255).
Tolerance.
A state in which the body’s tissue cells adjust to the presence of a drug. The term “tolerance” refers to a state in which the body becomes used to the presence of a drug in given amounts and eventually fails to respond to ordinarily effective dosages. Hence, increasingly larger doses are necessary to produce desired effects.
Habituation (psychological dependence).
The result of repeated consumption of a drug which produces psychological but no physical dependence. The psychological dependence produces a desire (not a compulsion) to continue taking drugs for the sense of improved well-being.
Physiological Dependence (addiction).
This occurs when a person cannot function normally without the repeated use of a drug. If the drug is withdrawn, the person has severe physical and psychic disturbance.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 255 - 256).
Controlled Substance Schedules.
Schedules I through V (Health and Safety Code Sections 11054 through 11058) list controlled substances formerly identified as “Narcotics” or “Restricted Dangerous Drugs.” The most dangerous substances (highest potential for abuse) are listed in Schedule I and II. The slightly less dangerous substances (milder or less addictive) are listed in Schedules III through V Some drugs are listed in more than one schedule, depending on the amount of opiates they contain.
1. Substances such as heroin, LSD, and marijuana are listed under Schedule I.
2. Cocaine, amphetamine, and other stimulants are listed under Schedule II.
3. The depressants such as the barbiturates and tranquilizers are listed under Schedules III and IV.
4. Compounds containing milder opiates, narcotic and non-narcotic medicinal ingredients are listed in Schedule V. Please see Schedules I through V, below. (Also, see Table of Controlled Substances, this chapter).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 256).
17.4 CONTROLLED SUBSTANCE POSSESSION
One may not legally possess any controlled substance unless it was obtained by a written prescription from a physician, dentist, podiatrist or veterinarian licensed to practice in California. Illegal possession is a felony or felony wobbler, depending on the substance possessed. The substance possessed must be in a usable amount to constitute a crime. Except for those with certain prior convictions and those who use firearms or commit other crimes, defendants convicted of simple possession must be sentenced to probation and treatment, and cannot be generally incarcerated (PC 1210.1).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 256 - 257).
Marijuana Possession—H&S 11357(b).
This section makes illegal possession of not more than 28.5 grams (1 ounce) of marijuana a misdemeanor. Possession of concentrated cannabis is a felony (wobbler).
Release on Citation.
In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking (H&S 11357(b)).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 257).
ATWATER v LAGO VISTA http://www.law.cornell.edu/supct/html/99-1408.ZS.html
PROPOSITION 36 http://www.prop36.org/
“Medicinal Marijuana”—H&S 11362.5.
Section 11357 (possession) and 11358 (cultivation of marijuana) “shall not apply” to a patient or primary caregiver who cultivates or possess marijuana for medical purposes, on the written or oral recommendation or approval of a physician. A “primary caregiver” is an individual who has consistently assumed responsibility for the housing, health or safety of the patient.
The county health department must issue photo identification cards to patients and primary caregivers upon satisfactory proof that the patient has a physician's prescription for medicinal marijuana, and law enforcement officers must accept such cards, unless they are believed to be fraudulently possessed (H&S 11362.7-11362.81).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 257).
17.5 ELEMENTS OF POSSESSION
In order to prove the commission of the crime of possession under the Health and Safety Code, each of the following four elements must be proved:
1. That a person exercised control over, or had the right to exercise control over a certain controlled substance.
2. That such person had knowledge of the presence of the controlled substance.
3. That such person had knowledge of its nature as a controlled substance.
4. That the substance was in an amount sufficient to be used as a controlled substance.
Two Types of Possession.
The law recognizes two kinds of possession: (1) actual possession and (2) constructive possession.
1. Actual possession: A person who knowingly has direct physical control over a thing is then in actual possession of it.
2. Constructive possession: A person who, although not in actual possession, knowingly has the right of control over a thing, either directly or through another person or persons, is then in constructive possession of it.
The law recognizes that one person may have possession alone, or that two or more persons jointly may share actual or constructive possession (People v. Piper, 19 Cal. App. 3d 248).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 258).
17.6 UNDER THE INFLUENCE
Under the Influence Defined.
If a controlled substance is appreciably affecting the nervous system, brain, muscles, or other parts of a person’s body, or is creating in this person any perceptible or abnormal mental or physical condition, such a person is under the influence of a controlled substance.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 258).
Toluene Ingestion—PC 381.
This section makes it a misdemeanor to be under the influence or possess toluene (glue, paint, etc.) or similar substances for purposes of inhaling the fumes (“glue sniffing”).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 258).
Unlawful Possession of Precursors—H&S 11383.5.
It is a felony to possess the precursor substances with the intent to manufacture methamphetamine or its analogs. It is also a felony to possess precursor substances with the intent to sell them with knowledge they will be used to manufacture methamphetamine, PCP or analogs (H&S 11383.6, 11383.7).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 259).
Loitering for Drug Activities—H&S 11532(a).
It is a misdemeanor to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit specified drug offenses (including most possession and distribution crimes). Relevant circumstances indicating criminal intent include (1) acting as a look-out, (2) transferring items, (3) attempts at concealment, (4) use of signals, (5) repeated contacts with vehicles and passersby, (6) possessing or being under the influence of drugs, (7) prior convictions, (8) probation or parole restrictions, (9) prior conduct within six months, (10) known drug area, and any other pertinent facts.
17.8 IMITATION CONTROLLED SUBSTANCE
Selling Imitation Drugs—H&S 11355.
It is a felony (wobbler) to sell any substance in place of a controlled substance, leading the buyer to believe that he or she is buying a controlled substance.
This section obviously gives the police a weapon to control incidents involving fake drug sales. The perpetrator cannot escape punishment by claiming that when they sell talcum powder for heroin, for example, they are not violating any law.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 259 - 260).
Possession of Paraphernalia—H&S 11364.7.
This law makes it a misdemeanor to possess or manufacture any drug paraphernalia with the intent to deliver, furnish, or transfer it under circumstances where the perpetrator should reasonably know that the paraphernalia will be used in connection with a controlled substance. The purpose of this section is to allow for control of so-called “head shops.”
Drug Paraphernalia Defined—H&S 11014.5.
“Drug paraphernalia” means all equipment, products and materials of any kind which are designed for use, or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacture, compounding, … injecting, ingesting, inhaling or otherwise introducing a controlled substance into the human body in violation of this division. It includes, but is not limited to: (a) hypodermic syringes and needles, (b) cocaine spoons, (c) “roach” clips, (d) controlled substance testing equipment, (e) objects designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, or hashish into the human body, and (f) container designed for use in storing or concealing controlled substances. EX: SAFETY PIN
17.10 PLACE DRUGS SOLD OR USED
Visiting Where Drugs Used—H&S 11365.
It is a misdemeanor to knowingly visit or be present in any room or place where specified controlled substances are being unlawfully smoked or used. It includes such drugs as heroin, mescaline, peyote, opium and cocaine. It does not cover marijuana.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 260).
17.11 PERSONS REQUIRED TO REGISTER
Drug Offenders Must Register—H&S 11590.
Any person convicted of specified narcotics offenses, or any person who is discharged or paroled from a penal institution where he or she was confined because of the commission of any such offense, or any person convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses, shall within 30 days of his or her coming into any county or city, in which he or she resides or is temporarily domiciled for such length of time, must register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 260 - 261).
ARSON 14 days
SEX OFFENDER Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.
PC§ 186.30. Registration
for Gang Members
(a) Any person described in subdivision (b) shall register with the
chief of police of the city in which he or she resides, or the sheriff
of the county if he or she resides in an unincorporated area, within 10
days of release from custody or within 10 days
of his or her arrival in any city, county, or city and county to reside
there, whichever occurs first.
17.12 DRIVING OFFENSES—ALCOHOL OR DRUGS
Under Influence—Alcohol or Drugs—VC 23152.
The Vehicle code defines any one of the following three acts as a misdemeanor offense:
1. Driving a vehicle under the influence of an alcoholic beverage or any drug, or under the combined influence of both.
2. It is also unlawful for any person who has .08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
3. It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. Note: this latter offense does not apply to a person who is participating in a methadone treatment program, as provided by law.
4. It is unlawful for a person with a BAC of .04% or more to drive a commercial vehicle.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 262).
DUI-DWI Defense Web Site:
http://www.duicenter.com.
Every criminal justice student, especially police officers, should browse this unique Web Site. Click on any underlined heading for details. Don’t overlook “The 20 Most Frequently Asked Drunk Driving Questions” and“The Driver’s Guide to DUI.(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 262).
Alcohol or Drugs—Causing Injury—VC 23153.
This Vehicle Code Section defines felony drunk driving. It is similar to VC 23152, above, except that VC 23153 involves injury to persons other than the driver. The offense consists of:
1. driving a vehicle under the influence of drugs or alcohol or both,
2. or, driving a vehicle with a blood-alcohol count of .08 percent or more,
3. and while driving, doing, or failing to do, any act forbidden or required by law (e.g., speeding, running red light),
4. which act or neglect proximately causes bodily injury to any person other than the driver.
Subsequent Offenses.
A person convicted of DUI with three or more prior convictions for DUI or “wet reckless” (VC 23103.5, essentially a reduced charge in a DUI case), within the previous ten years, is guilty of a felony (wobbler) (VC 23566).
Where the defendant has a prior felony DUI or alcohol-related vehicular manslaughter within 10 years, a subsequent DUI is a felony (wobbler) (VC 23566).
A DUI with injury within 10 years of a previous conviction for DUI or “wet reckless” is a felony (wobbler) which carries increased penalties (VC 23185). A DUI with injury with two or more priors within 10 years is a straight felony (VC 23566).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 262).
Administrative License Suspension—VC 23612 (e)-(g), VC 23158.5.
These two sections specify that peace officers, acting on behalf of the Department of Motor Vehicles (DMV), shall seize the driver’s license and issue a temporary forty-five (45) day operating permit to any DUI arrestee who:
(1) refuses to submit to chemical testing,
(2) fails to complete a chosen test,
(3) tests above .08% on a breath test, or
(4) insists on taking only a blood or urine test.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 264 - 265).
CHAPTER 18: MISCELLANEOUS OFFENSES MAY 24 / 25, 2011
CHAPTER 18 MISCELLANEOUS OFFENSES
18.1 FORGERY DEFINED
Forgery of Legal Documents—PC 470.
Every person who with intent to defraud, signs the name of another person or of a fictitious person, knowing that he or she has no authority so to do, or falsely makes, alters, forges, or counterfeits any … lottery ticket, deed, … check, draft, …contract, promissory note, due bill for the payment of money or property, receipt for money or property, or counterfeits or forges the handwriting of another, or utters, publishes, passes or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeit matters, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person … is guilty of forgery. (briefed)
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 267).
Material Alteration.
One may make a “material alteration” of a document merely by changing a word, a letter, or perhaps even a decimal point. “Writing,” as used in forgery, is not limited solely to handwriting but includes any kind of written or printed reproduction.
Making—Uttering Defined.
The term “making,” as used in forgery also includes any alteration, however slight. “Uttering” is merely giving, offering, cashing or passing or attempting to do so.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 267).
18.2 INTENT TO DEFRAUD
The specific intent to defraud is an essential element of this crime. However, it is not necessary to prove that any person was actually defrauded or lost money or property as a result of the forgery. It is sufficient to show that either a specific individual, a business or members of the public would have been injured or defrauded as a result of the defendant’s act.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 267).
Mere Possession—PC 476.
This section also makes it a crime (felony wobbler) to have in one’s possession, with intention to cash it, any fictitious or forged check or other instrument in writing for the payment of money.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 268).
Insufficient Funds—PC 476a.
Violations are punishable by imprisonment in the county jail, or in the state prison.
THE DEFENSE OF "I STILL HAVE CHECKS" IS NOT VIABLE.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 269).
18.5 ARSON
Definitions—PC 450.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 269).
Punishment for Arson—PC 451.
A person is guilty of arson and punishable by imprisonment in the state prison when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of, any structure, forest land or property. Additional terms of imprisonment are imposed for prior convictions, injuries to safety personnel, multiple structures, multiple injuries, and use of accelerants or timers (PC 451.1). Arson is a general intent crime (People v. Atkins, 28 Cal. 4th 457).
Punishment of 10 years to life is the term for aggravated arson, based on intent to injure, with specified prior convictions or damages to five or more inhabited structures or losses exceeding five million dollars (PC 451.5).
For purposes of this section, arson of property does not include burning or causing to be burned one’s own personal property unless there is intent to defraud or there is injury to another person or another person’s structure, forest land, or property.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 270).
Duty to Register—PC 457.1.
In addition to any other punishment, a person convicted of arson or attempted arson must register with the sheriff or police chief within 14 days of residency. Failure to register is a misdemeanor.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 270).
18.9 ABANDONED APPLIANCES
Abandoned Appliances—PC 402b.
Any person who discards or abandons or leaves in any place accessible to children, any refrigerator, icebox, deep freeze locker, clothes dryer, washing machine or other appliance having a capacity of one and one-half cubic feet or more, which is no longer in use, and which has not had the door removed or the hinges and such portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor.
Any owner, lessee, or manager who knowingly permits such appliances to remain on premises under his or her control without having the door removed or the hinges and such portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor (briefed).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 271).
18.15 INJURY TO JAIL
Destroying Jail—PC 4600.
“Every person who willfully and intentionally breaks down, pulls down, or otherwise destroys or injures any jail or prison, is [guilty of a felony wobbler], except that where the damage or injury to any city, city and county or county jail property is determined to be $950 or less, such person is guilty of a misdemeanor.”
Unauthorized Possession in Jail—PC 4575.
Any person in a local correctional facility who possesses a wireless communication device, including, but not limited to, a cellular telephone, pager, or wireless Internet device, who is not authorized to possess that item is guilty of a misdemeanor, punishable by a fine of not more that $1000. Unauthorized possession of tobacco in designated facilities is a $20 infraction.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 272).
18.16 INVASION OF PRIVACY
Wiretapping—PC 631.
It is a felony (wobbler) to make an unauthorized connection to a wire or cable system and learn, without the consent of all parties, the contents of any intercepted communication. Evidence obtained via unauthorized wiretap is inadmissible in any proceeding, except against the one who made it.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 272).
Electronic Tracking—PC 637.7.
It is a misdemeanor to use an electronic tracking device (transponder), attached to a vehicle or other movable thing, to track the movements or location of a person, without consent. This section does not prohibit lawful tracking by enforcement officers.
Law Enforcement Exemption—PC 633.
Specified law enforcement officers have a limited exemption from the prohibitions of sections 631, 632, 632.5, 632.6 and 632.7, allowing the interception and recording of communications where permitted by federal law and the Constitution. For example, officers may record conversations by two or more arrestees in a police car (People v. Lucero, 190 Cal. App. 3d 1065), and may record a prisoner’s jailhouse call to an accomplice or victim (People v. Guilmette, 1 Cal. App. 4th 1534) with the consent of one party, or where there is no reasonable expectation of privacy (signs or notices may be posted). However, it is a felony to intercept or record a prisoner’s confidential communications with an attorney, physician or spiritual advisor (PC 636).
Evidentiary Recording—PC 633.5.
One party may record a confidential communication to obtain evidence of extortion, kidnapping, bribery, violent felony against the person, or obscene or annoying phone calls. Also, the victim of a domestic violence restraining order may be authorized by the judge to record any prohibited communication from the perpetrator (PC 633.6).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 272 - 273).
Occupied Locked Vehicles—VC 22516.
This Vehicle Code section provides that no person shall leave standing a locked vehicle in which there is any person who cannot readily escape there from.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 273).
WHAT ABOUT ANIMALS?
False Name to Newspaper—PC 538a.
It is a misdemeanor to sign and send a letter to a newspaper using a name other than one’s own, with intent to cause the newspaper to believe that letter was written by the person whose name was signed.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 273).
Aerosol Paint Cans—PC 594.1.
This section makes it a misdemeanor:
1. for any person (other than legal guardian) to sell or give any person under 18 years of age, any aerosol can (containing more than 6 ounces of paint or etching cream) that is capable of defacing property, without first obtaining evidence of age and identity; or
2. for anyone under age 18 to purchase an aerosol can or etching cream as described; or
3. for any person to carry in plain view an aerosol can or etching cream as described, in any posted public facility, park, etc.; or
4. for anyone under age 18 to possess an aerosol container of paint (net contents larger than 6 ounces) or etching cream for the purpose of defacing property while in any public place.
Possession of Graffiti Tools—PC 594.2.
It is a misdemeanor to possess paint, markers or cutting tools with intent to commit vandalism.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 273).
Cruelty to Animals—PC 597.
(a) Except as provided in subdivision (c), every person who maliciously and intentionally maims, wounds, tortures, or mutilates a living animal which is the property of another, or maliciously and intentionally kills an animal which is the property of another, is guilty of [a felony wobbler].
(b) Except as otherwise provided in subdivision (a) or (c), every person who overdrives, overloads, …overworks tortures, torments, deprives of necessary sustenance, drink or shelter, cruelly beats, mutilates or cruelly kills any animal … is guilty of a misdemeanor.
(c) Every person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish … is guilty of an offense … [punishable as a felony wobbler].[Briefed.]
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions pp. 273 - 274).
Unlawful Restraint of Animals—PC 597.7, H&S 122335.
It is an infraction (first offense with no injury) or a misdemeanor (where injury results, or subsequent offenses) to leave an animal unattended in a vehicle under conditions where it is exposed to risks of heat, cold, or lack of food and water, and might suffer great bodily injury (PC 597.7). It is an infraction or misdemeanor (subsequent offenses) to tether a dog to a tree, fence, doghouse or other fixed object, except to perform a brief task (H&S 122335).
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 274).
Employment Surveillance—Labor Code 435.
It is an infraction for any employer to make audio or video recordings of employees in restrooms, locker rooms or changing rooms, except with a court order.
(California Criminal Law Concepts, 2010 Edition. Pearson Learning Solutions p. 274).
SAMAHA CHAPTERS 7 - 13
CHAPTER 7: PARTIES TO CRIME AND VICARIOUS LIABILITY
CHAPTER 8: INCHOATE CRIMES - ATTEMPTS, SOLICITATION, CONSPIRACY
CHAPTER 9: CRIMES AGAINST PERSONS I: MURDER AND MANSLAUGHTER
CHAPTER 10: CRIMES AGAINST PERSONS ll: CRIMINAL SEXUAL CONDUCT THREAT OF FORCE BODILY INJURY, AND PERSONAL RESTRAINT.
CHAPTER 11: CRIMES AGAINST PROPERTY
CHAPTER 12: CRIMES AGAINST PUBLIC ORDER AND MORALS
CHAPTER 13: CRIMES AGAINST THE STATE
PEOPLE OF THE STATE OF CALIFORNIA v IVORY J. WEBB JR. NOVEMBER 13, 2011
|
The People of the State
of California v Ivory J. Webb is a significant case in
the annals of criminal cases, especially in the Inland Empire,
pertaining to use of force criminal cases involving California
Peace Officers.
Your assignment is to critically analyze the case as to legally (what does the law say) through the various segments of the criminal justice system regarding this matter; police, district attorney, defense counsel, and the courts. This case is not about your personal opinion. Any indication that I receive stating your personal opinion will result in points deduction. Analyze and evaluate all aspects of this case through the lens of legal analysis (what does the law say). IVORY WEBB SHOOTING CASE: http://www.metafilter.com/48831/Video-of-a-San-Bernardino-Sheriffs-Deputy-shooting-an-unarmed-man-who-appears-to-be-complying-with-orders PDF FILES - PEOPLE OF THE STATE OF CALIFORNIA v. IVORY WEBB JR. crime guns videotape ivorywebb. Airman Shooting ivory webb case. Who's who in the trial of Ivory Webb. Trial in taped shooting begins. Ex-S.B. County Deputy to Face Trial in Shooting, Judge Rules. Deputy Enters a Not-Guilty Plea in Videotaped Shooting of Airman. Deputy to Stand Trial in Shooting. Deputy to Stand Trial in Shooting2. Shooting Accounts at Odds in Report. Shooting Accounts at Odds in Report2. Webb faced a split-second decision, defense says. Video is cited by both sides in Chino shooting case
Video is cited by both sides in Chino shooting case
Experts say jurors in Inland case may find it hard to convict ex-sheriff's deputy.
Jurors hear conflicting reasons why man was shot by sheriff's deputy.
IVORY WEBB JR Final instructions. Shooting Shocks Deputy's Friends. Shooting Shocks Deputy's Friends2. 'He's always liked to protect people'. Deputy in airman's shooting no longer on force. Ivory Webb Acquitted in Taped Shooting, Civil Suit Next. PoliceCrimes.com ivory webb found not guilty. Ex-deputy cleared in shooting caught on video. Ex-deputy cleared in shooting of off-duty airman. Ex-deputy cleared in shooting of off-duty airman2. Ex-deputy cleared in shooting of off-duty airman4. CALIFORNIA LAW - PEACE OFFICER USE OF FORCE TO ARREST - how applicable is this law in this matter?
PC§ 835a. Peace Officer
Use of Force to Arrest Criminal liability - Beyond Reasonable Doubt, 12-0 - due process for conviction / acquittal. Civil liability - Preponderance of Evidence, 9-3, Liable, monetary damages, restore to wholeness. $1.5 million. County of San Bernardino, Ivory Webb Jr. civil law suit. Grievance: arbiter - Administrative Law Judge - property rights to job review in areas of discipline.
|
DISCUSSION:
CONSENSUAL ENCOUNTER?
DETENTION?
ARREST: DRIVER, PASSENGER
EVIDENCE: VIDEO, WEBB, STATEMENTS FROM OTHERS. # OF SHOTS. PLACEMENT OF SHOTS. TRAINING
LAW: 835a PC. OFFICER DISCRETION. REASONABLE FORCE. NECESSARY FORCE.
ATTEMPTING TO FLEE, OVERCOME RESISTANCE, EFFECT THE ARREST
SELF DEFENSE: JUSTIFICATION, EXCUSE?
CRIMINAL LIABILITY: CHARGE - ATTEMPT VOLUNTARY MANSLAUGHTER, FELONY ASSAULT WITH A FIREARM. WHAT ABOUT ATTEMPT MURDER - MALICE?
ACTUS REUS: VOLUNTARY
MENS REA: STATE OF MIND. INTENT(IONAL). GENERAL, SPECIFIC, TRANSFERRED
HOMICIDE: KILLING JUSTIFIABLE. SELF DEFENSE, PERFORMANCE OF DUTY
PURPOSE, KNOWLEDGE, RECKLESS, NEGLIGENT
MURDER: 1st DEGREE - EXPRESS. 2nd DEGREE - IMPLIED. WITH MALICE
MANSLAUGHTER: WITHOUT MALICE
SERIOUS FELONY HUNT PAGE 26
VIOLENT FELONY HUNT PAGE 28
TEST FOR BEING ARMED: SENTENCE ENHANCEMENT - PEOPLE v MORAN HUNT PAGE 140
PROPERTY RIGHTS: PROBATIONER. PHYSICAL STATE, MENTAL STATE
PERMANENT
Chapter
9.7. Public Safety Officers
GC§ 3300. Peace Officer Bill of Rights
This chapter is known and may be cited as the Public Safety Officers
Procedural Bill of Rights Act.
PC§ 832.5.
Citizen Complaints
(a) Each department or agency in this state that employs peace officers
shall establish a procedure to investigate complaints by members of the
public against the personnel of these departments or agencies, and shall
make a written description of the procedure available to the public.
(b) Complaints and any reports or findings relating to these complaints
shall be retained for a period of at least five years. All complaints
retained pursuant to this subdivision may be maintained either in the
officer's general personnel file or in a separate file designated by the
department or agency as provided by department or agency policy, in
accordance with all applicable requirements of law. However, prior to
any official determination regarding promotion, transfer, or
disciplinary action by an officer's employing department or agency, the
complaints described by subdivision (c) shall be removed from the
officer's general personnel file and placed in separate file designated
by the department or agency, in accordance with all applicable
requirements of law.
(c) Complaints by members of the public that are determined by the peace
officer's employing agency to be frivolous, as defined in Section 128.5
of the Code of Civil Procedure, or unfounded or exonerated, or any
portion of a complaint that is determined to be frivolous, unfounded, or
exonerated, shall not be maintained in that officer's general personnel
file. However, these complaints shall be retained in other, separate
files that shall be deemed personnel records for purposes of the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) and Section 1043
of the Evidence Code.
(1) Management of the peace officer's employing agency shall have access
to the files described in this subdivision.
(2) Management of the peace officer's employing agency shall not use the
complaints contained in these separate files for punitive or promotional
purposes except as permitted by subdivision (f) of Section 3304 of the
Government Code.
(3) Management of the peace officer's employing agency may identify any
officer who is subject to the complaints maintained in these files which
require counseling or additional training. However, if a complaint is
removed from the officer's personnel file, any reference in the
personnel file to the complaint or to a separate file shall be deleted.
(d) As used in this section, the following definitions apply:
(1) "General personnel file" means the file maintained by the agency
containing the primary records specific to each officer's employment,
including evaluations, assignments, status changes, and imposed
discipline.
(2) "Unfounded" means that the investigation clearly established that
the allegation is not true.
(3) "Exonerated" means that the investigation clearly established that
the actions of the peace officer that formed the basis for the complaint
are not violations of law or department policy.
LYBARGER
PITCHESS MOTIONS
ORANGE COUNTY DISTRICT ATTORNEY
http://orangecountyda.com/home/index.asp