This little known statue can be found  in the California PC 602 (g) - Entering upon any lands owned by any other person whereon oysters or other shellfish are planted or growing; or injuring, gathering, or carrying away any oysters or other shellfish planted, growing, or on any of those lands, whether covered by water or not, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands. 

The complete Penal Code for Criminal Trespassing can be read at http://law.onecle.com/california/penal/602.html 

To summarize this lengthy code, trespassing can be defined as taking place when you enter someone else’s property without permission or have a right to do so. It is an illegal intrusion that interferes with the rights of another person or property. Oysters aside, the more common actions that constitute criminal trespassing include:

• entering someone else’s property with the intent to damage that property
• entering someone else’s property with the intent to interfere with or obstruct the business activities conducted thereon
• entering and ”occupying” another’s property without permission
• refusing to leave private property after you’ve been asked to do so

What are the Penalties for Criminal Trespassing?

Criminal Trespassing under California Penal Code Section 602 is a criminal offense and can be filed as an infraction, felony or misdemeanor.

A misdemeanor can mean up to 6 months in the County Jail and a maximum $1,000 fine

Aggravated Trespassing (done under threat or force) can be either filed under a misdemeanor or felony: a misdemeanor can mean up to 1 year in the County Jail and a maximum $2,000 fine and a felony sentencing range falls between sixteen (16) months and three (3) years in state prison. 

If you are facing criminal trespassing charges for Penal Code 602 call our office today at 619-330-5881.  Mr. Elliott N. Kanter has been serving the San Diego area for over 30 years as a Criminal Defense Attorney. He superior knowledge of California Law and the judicial system will be your best defense.   He is ready to meet with you for a free consultation and review.

This article is for education purposes only.  It does not create an attorney-client relationship.

The California law is severe and a defendant can be found guilty of making criminal threats even if there was no intent to actually carry out the threat.

California Penal Code 422 PC defines the crime of threating another person.

PENAL CODE SECTION 422-422.4 states: 

422.  (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.

 What are the Penalties for Violating California’s Criminal Threats Law?

Penal Code 422 PC is a “wobbler”. This means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on the circumstances of the offense and your criminal history. If convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If convicted of the felony, you face up to three years in the California state prison and a maximum $10,000 fine.

Call us for Help

If you have been accused of making criminal threats, call our office today at 619-330-5881. Mr. Elliott N. Kanter is an experienced and aggressive San Diego Criminal Defense Attorney.  Your initial consultation is free and strictly confidential.  Depending on the facts and circumstances of your case, Attorney Elliott N. Kanter may be able to argue that the alleged threat does not meet the criteria of a criminal threat set forth in California Penal Code Section 422.  He will ensure your rights are protected in a court of law.

This article is for educational purposes only.  It does not create an attorney-client relationship.

 California Penal Code 1000 (PC 1000) is known as a deferred entry of judgment program and gives first time nonviolent drug offenders with no prior record the option to plead guilty; but instead of serving time in jail, the offender must attend a class once a week for four months.

As stated in PC1000: “Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred.”

This means if the rehabilitation course is successfully completed, and no other charges are made for the next 18 months the original case against you could be dismissed.  All court fees must be up to date as well as all required meetings with the court. 

California Proposition 36 (commonly referred to as Prop 36) was enacted in the year 2000 as the Substance Abuse and Crime Prevention Act. Its goal is “To divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses”.

Whereas PC100 deals only with non-violent first time offenders, Prop 36 includes not only new convictions, but also persons on probation and non-violent parole violations.

Prop 36 is defined in the California Penal Code sections 1210-1210.1 as being a California “drug diversion”. Drug diversion is the practice of allowing eligible offenders to have their charges dropped if they succeed in completing a court approved treatment program.  Prop 36 defines a treatment program as include one or more of the following:

• Drug education
• Out patient or residential treatment
• Detox and/or narcotic replacement therapy
• Aftercare

The programs are usually 12 months long and can extend to 18 months in some cases.

If you or a loved one has been arrested and charged with use or possession of a controlled substance, please fill out the form to the right or contact our office at 619-330-5881. Mr. Elliott N. Kanter is an experienced San Diego criminal defense attorney with 30+ years of experience.  Your consultation is always free and confidential.

This article is for educational purposes only and does not in any way constitute legal advice. It also does not establish an attorney-client relationship.

Perjury is a crime that is committed when someone under an oath of truth administered by California State law intentionally gives false information.

CALIFORNIA PENAL CODE SECTION 118 defines Perjury:

118.  (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.

   This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.

   (b) No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.

If you give false information in any of the following circumstances, you are violating California PC118 and can be tried for perjury:

• testifying in court
• during a deposition
• in a signed affidavit
• in a signed declaration
• in a signed certificate

Penalties for a Perjury Conviction

Perjury is a felony in California. California law penalizes anyone who willfully or knowingly makes false statements while under oath.  For repeat offenders, there could be jail time in state prison. First time offenders with no prior criminal history may be given formal probation, fines, community service and restitution.   A felony sentence always depends on other external factors that come into play, such as the judge, the prosecutor and the victim.

Because a perjury conviction can impact your ability to obtain gainful employment, career advancement, loans for business or real estate, professional licenses, etc. you will need experience legal counsel if you are being investigated for perjury.  Mr. Elliott N. Kanter has over 30 years experience as a San Diego Criminal Defense Attorney.  Contact us today at 619-330-5881 to set up a complimentary consultation.  He can help you avoid harsh penalties and minimize the negative effects on your life.

This article is for educational purposes only and does not create an attorney-client relationship.

The North County Times reported that the director of the Greenhouse Cannabis Club filed the suit. It claims that Murrieta police are violating medical privacy laws and threatening patients with violence, arrest and detention.

The suit says police have targeted patients leaving the club and questioned them about their possession of medically prescribed marijuana. It also asks a judge to strike down the city’s existing moratorium on drug dispensaries.

The California Medical Marijuana & The Compassionate Use Act of 1996

This law was passed to give certain patients, with specific medical conditions, legal access to marijuana.

Health & Safety Code Section 11362.5 guarantees:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary care-givers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C), To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

(c) Notwithstanding any other provision of law: no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

Laws Regulating California Medical Marijuana Dispensaries

The California state laws that control the opening and running of medical marijuana dispensaries are strict and complex. It is an extremely risky legal undertaking. Many counties will not even issue licenses for dispensaries, and that means that opening them is inherently illegal.

In order to open a dispensary in accordance with California law, the business must be classified as a non-profit organization.

The state and local procedures that are required of any new business must be followed flawlessly.  Also by forming and maintaining positive relationships with state and local government and law enforcement agencies it will help to keep the organization in good standing.

Even if you precisely follow all guidelines, you still subject yourself to federal prosecution as well. However, you are much less likely to be charged in federal court if you comply with state and local laws. It is important to remember that any possession of marijuana is still a federal crime.  More states are now in favor of legalized medical marijuana and the current federal law is under study.

 Call Us for Help

If you have any questions or concerns about the medical marijuana laws in California, please contact our office at 619-330-5881.  Mr. Elliott N. Kanter is an experience San Diego Criminal Defense Attorney serving southern California for over 30 years.  If you prefer, simply fill out the on-line form and we will respond without delay.

The California commercial bribery law is based on the concept of “fiduciary duty” between a business entity and its employees. A fiduciary duty is an obligation to act in the best interest of another party. The breach of that duty to the injury of the employer based on the acceptance of a thing of value is unlawful.

CPC 641.3 states:

(a) Any employee who solicits, accepts, or agrees to accept money or anything of value from a person other than his or her employer, other than in trust for the employer, corruptly and without the knowledge or consent of the employer, in return for using or agreeing to use his or her position for the benefit of that other person, and any person who offers or gives an employee money or anything of value under those circumstances, is guilty of commercial bribery.

(b) This section does not apply where the amount of money or monetary worth of the thing of value is two hundred fifty ($250) or less.

In other words, Commercial Bribery happens when an employee corruptly accepts or agrees to accept money or anything of value great that $250 from someone other than the employer without the knowledge or consent of the employer in return for using his or her position for the benefit of that other person.

What is the definition of “corruptly” in this law?

As defined in CPC 641.3:

 ”Corruptly” means that the person specifically intends to injure or defraud (A) his or her employer, (B) the employer of the person to whom he or she offers, gives, or agrees to give the money or a thing of value, (C) the employer of the person from whom he or she requests, receives, or agrees to receive the money or a thing of value, or (D) a competitor of any such employer.

What is the Punishment for Commercial Bribery?

If the amount of the bribe is $1,000 or less, it is punishable by imprisonment in the county jail for not more than one year.

If the amount of the bribe exceeds one thousand dollars ($1,000), the punishment can be imprisonment in the county jail or state prison for 16 months, or two or three years.

What are the Defenses for Commercial Bribery Charge?

If you are accused of bribery you have a good defense if you did not take any money or gifts with “corrupt” intent to injure or defraud your employer. There can be no conviction without corrupt intent because Commercial bribery is a specific intent crime.

 Call our office for help.

If you have been charged with violating Penal Code 641.3, or are otherwise accused of bribery, please call our office today at 619-330-5881 for a confidential case review. Mr. Elliott N. Kanter has over 30 years’ experience serving as a Criminal Defense Attorney in southern California. We are here to help you.

This article is for education purposes only and in no way creates an attorney-client relationship.

The basic principle of self-defense is that you should not be punished for injuring or killing another while trying to protect yourself.   However, your actions must be judged reasonable under the circumstances.

Self-Defense in the News

The recent shooting death of Trayvon Martin has caused our nation to re-examine the right to self-defense.  In Sanford, Florida, George Zimmerman was initially not held responsible for the shooting because of the 2005 Florida statute known as the Stand Your Ground law.  Essentially, this law permits any person to employ justifiable force in self-defense when there is reasonable belief of a threat, even if that force is deadly.

Since Martin’s death, the nation has been in an uproar. It is raising disturbing questions about gun control in the United States and the incident has opened the doorway for legislators to reexamine self-defense laws.

What are the Self-Defense Laws in California?

There are two standard California Jury Instructions that further help to define self-defense:

“It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds to believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” (California Jury Instructions–Criminal (CALJIC) 5.30.)

“An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him.” (CALJIC 5.31.)

Other instructions specify that the assaulted person need not retreat and the appearance of danger is sufficient. Also, self-defense is not available after the danger ceases or the adversary is disabled.  It is also not considered self-defense when an aggressor or participant in mutual combat has not tried to stop fighting.

A lot depends upon what the jury thinks is “reasonable.” This involves ONLY bodily self-defense, and not defense of property.

What are differences between Florida and California Self-Defense Laws?

There are two major differences between  the Florida and California law.  First, in California, a person claiming self-defense must use “reasonable force,” while Florida law says a person can “meet force with force, including lethal force.”

In Florida, that means if someone first punches you with their fist, you could respond by shooting them with deadly force.

The second major difference is that in Florida, when self-defense is invoked, there is a presumption the killing is reasonable. The burden is put on prosecutors to show that it is not.

In California the burden is on the attorneys representing the person claiming self-defense to show the killing was reasonable.

If you have any questions or concerns about what constitutes self-defense in California, please call our office at 619-330-5881.  Mr. Elliott N. Kanter is a Criminal Defense Attorney with over 30 years’ experience in Southern California.  He is here to help you. You may also fill out the secure on-line form for a confidential and free case review.

This article is for educational purposes only.   It does not create an attorney–client relationship.

       (a) “Carjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence,  or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either  permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. 

      (b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years.

As the law above states, it a serious crime to take a car from another person by means of force or fear. ”Force or fear” means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm.

It does not matter if the person in the car is the driver, a passenger, or even the owner of the car. If you use force or fear to take control of that car, you may be convicted of the charge.

What are the Defenses for a Carjacking Charge?

If you feel you have been wrongly charged with Penal Code 215, there are several defenses that your criminal defense attorney can use to protect you from the harsh sentence.  You may be able to prove your case IF:

• there was NO specific intent to take away or temporary deprive the person of the vehicle
• you were the owner of the motor vehicle
• the vehicle was not taken from the immediate presence of a person who possessed the vehicle
• the vehicle was not taken against the person’s will
• you did not use force or fear to take the vehicle or to prevent that person from resisting.

If you or a loved one is facing a carjacking charge, it is critical that you speak with an experienced criminal defense attorney.  Mr. Elliott N. Kanter has over 30 years of experience helping people just like you. Call our office today at 619-330-5881 for a free consultation.  Or simply fill out the secure and confidential on-line form and we will respond without delay to your questions and concerns.

This article is for education and marketing purposes only and in no way creates a client/attorney relationship.

The “Evading an Officer Causing Injury or Death” Law states in California Vehicle Code 2800.3:

2800.3.  (a) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, five, or seven years, by imprisonment in a county jail for not more than one year, or by a fine of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment.

(b) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years.

What is considered serious bodily injury?

“Serious bodily injury” is defined in the California Penal Code Section 243.

It means that there is a serious impairment of one’s physical condition, including, but not limited to, the following:

• loss of consciousness
• concussion
• bone fracture
• protracted loss or impairment of function of any bodily member or organ
• a wound requiring extensive suturing
• serious disfigurement

As stated in VC 2800.3 above, if you are convicted of injuring another person as a misdemeanor, you face up to one year in a county jail and $2,000 to $10,000 in fines. If you are convicted of injuring another person as a felony, you face three, five, or seven years in the California state prison. If you are convicted of evading an officer and killing another person, you face four, six, or ten years in the state prison.

If you or a loved one has been charged with a California VC2800.3 as described in this post, please contact Mr. Elliott N. Kanter as soon as possible at 619-330-5881.  Or fill out the secure on line form for a prompt reply.  Attorney Kanter is a skilled Criminal Defense Attorney with over 30 years’ experience defending California citizens just like you.  Please call with any questions or concerns.  Your initial consultation is always free and completely confidential.  We are here to help you.

However, if there was “willful or wanton disregard for the safety of others” while evading an officer, the violation will be considered a felony.  It is commonly known as “felony reckless evading”; and if charged, this crime carries a mandatory jail or prison sentence.

California V C Section 2800.2 states:

2800.2. (a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.

What is acting with “wanton disregard for safety?

If you are aware that your actions present a considerable and uncalled-for risk or harm, but you intentionally ignore that risk, you are acting with wanton disregard for the safety of others and property.

As stated below in VC 2800.2b , driving with a willful or wanton disregard for safety may include (but is not limited to):

• committing three or more traffic violations that are each assigned a traffic violation point by the DMV. (Failure to yield doesn’t count towards this minimum, as it is necessarily included in the act of evading)
• causing damage to property

VC 2800.2(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs. 

What are the legal defenses to a Vehicle Code 2800.2 VC? 

Your criminal defense lawyer could present the following defenses on your behalf:

• You didn’t intend to evade the officer.
• There was  insufficient evidence for your arrest.
• The arrest was based on an illegal stop. There must be a reasonable suspicion that you are or were engaged in criminal activity.

The Law Office of Elliott N. Kanter is ready to help you fight a felony Reckless Evading charge.  Call our office today at 619-330-5881 or complete our secure on-line form for more information about California’s evading laws. Your initial consultation is always free and strictly confidential.

This article is for educational purposes only.  It does not create an attorney-client relationship.