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This question is somewhat difficult and you should consult an Attorney immediately if faced with this situation.  As a Criminal Defense Attorney with more than 13 years of experience I know how difficult this situation is. 

The question posed above is again difficult and sometimes complex.  I often get phone calls regarding this question.

First, again if faced with this question you should contact an Attorney immediately.

An Attorney can help you navigate the questions and situations and sceneriors you will face.

If you do not want the case prosecuted you can have an Attorney draft a letter stating as such.   This does not guarantee that the case will be dropped. Often people believe they are in charge of the District Attorneys decision to press charges.  Many times I have had clients exclaim, I don't want to press charges.  However, the District Attorney and the District Attorney alone makes final decisions about these decisions not citzens. 

However, if you make it plain to the District attorney that you do not want to testify, or will not testify the prosecution will have to make the choice of whether they have evidence outside of the victims statement sufficient to obtain a  guilty verdict.

If the victim was always needed then nobody would ever be found guilty of Murder, because obviously the deceased cannot testify. 

The 911 call

independant witnesses

Your prior taped statements in some cases,

The photographs of the injury and any emegency statements can all be brought in to prove the charge of domestic violence. 

Oftentimes in domestic violence cases either Felony or Misdameanor this type of evidence is not available.  Therefore, the testimony of the victim is critical.

VICTIM IS ONLY WITNESS TO THE DOMESTIC VIOLENCE INCIDENT.

Sometimes the there is none of the above referenced evidence.  In these type of cases the victims statement is vital to the prosecution.  It should be noted that if you as the victm testified at the preliminary hearing and then decide to stop cooperating the preliminary hearing testimony may under certain circumstances be used in court.

WHAT IF I AM SUBPOENAD TO COURT

If your are subpoenad to court you must comply with the subpoena to court.  You again, you should show up to court with an Attorney if you are concerned about your legal rights or do not want to testify. 

WHAT HAPPENS IF I REFUSE TO TESTIFY

If you refuse to testify after being properly subpoenad to testify you could be held in contempt of court.  However, in the state of california domestic violence and certain other victms cannot be jailed for contempt of court for refusing to tesity against there abuser.   However again as stated above you can and possibly will be jailed for failing to comply with a subpoena.  These two issues are many times confused even by inexperienced counsel.  You should not follow the advice of an Attorney that is telling you to merely not show up to court if you are subpoenad this is not correct legally and could land you in jail.

SO WHAT IS THE RESULT IF I AM HELD IN CONTEMPT FOR NOT TESTIFYING IN COURT

Again, in the state of california you will not be jailed; however, there could be consequences to being held in contempt of court.  First, there could be a record of the contempt order and hearing in court are open to the public this means that your employer, and prospective employers may find out about this contempt order.   

If your are a peace officer or law enforcement officer this could affect your employment. However, I have never heard of this happening.  I have had a client that was a medical doctor and had employment problems because of her contempt order it seems her employer thought her behavior was not in compliance with what they wanted the public to see and she was not offered a position in part due to her dysfunctional lifestyle that they believed would inevitably spill into her work life.  This is the only time I have heard of this happening.  And there could have been other factors at play in that employers decision. 

DO NOT COMMIT PERJURY

It is never ok to commit perjury.  Lying on the stand is not ok under any circumstances.  Even if an Attorney tells you to do this.  If you are going to testify in court because you don't want to be held in contempt tell the truth and let accept the outcome.  You should never trust the advice of an Attorney that tells you to lie or tells you what to say on the stand. 

Besides if you get on the stand and tell a different story than the one you told originally you will be impeached with your prior testimony and you will be opening yourself up to perjury charges and possibly jail, if your new story is a lie.  The jurors will see past your lie.

WHAT IS IMPEACHMENT

Impeachment in this context means your prior statement can be brought in.  The prior statement is not hearsay as it is an inconsistant statement and not hearsay.  You will be asked about that prior statement and then the police officer or person you gave the prior statement to will be called as a witness and you will be impeached. 

WHAT IF MY FIRST STATEMENT WAS NOT TRUE

If your first statement was not true or your husband or wife was defending himself when the abuse allegedly occurred, then you must get counsel immidiately you may have your own charges to worry about and have a legitimate 5th amendment right not to testify.

WHAT IS A FIFTH AMENDMENT RIGHT NOT TO TESTIFY

You cannot be held in contempt for simply exercising your 5th amendment right not to testify.  If you believe your first statement was either not true or somehow implicates yoou in a criminal act such as assualt you may refuse to testify.  You cannot be held in contempt for excercising your constitutional right under the 5th amendment. 

The Judge will hold a hearing to see if you have a legitimate right under the fifth amendment.

WHAT IS IMMUNITY AGREEMENT

The prosecution sometimes will offer immunity from prosecution in these types of situations.  If you are given immunity from prosecution you may be ordered to testify.

If you have any questions about this sometimes complicated area don't hesitate to call I have helped many hundreds of people in the same or simiiari circumstances.

 

There are two reasons the police would want to interview you.

1. you are a witness to a crime

2. you are a suspect in a crime.

 

In either instantance you should retain the services of an Attorney before making any statements.  Many people believe wrongfully that if the police want you to make a statement or be interrogaged you must speak with the police.  This just wrong.  You are under no legal obligation to make a statement to police or Federal Agents.  If you do make a statement to Federal Agents that is false you could be chaged with lying to a Federal Officer this is again another reason you should consult an Attorney before you agree to make any statements to the police. 

Police Officers are trained interrogators, many people think they can simply outsmart the police or talk there way out of things.  The police are not required to tell you the truth and many times use suberterfuge to obtain confession.  In fact I have personally watched well over 150 interrogations of all sorts and have rarely seen the police not use subterfuge, or false statements.  

 

Well wouldnt the police have to read me my rights if I am interviewed.  It depends.

The only time a police officer is required to give you Miranda Warnings is when certain factors are present.

1. Police Dominated (it must be a government agent) 

2.  Custodial (you must be in custody ie a reasonable person would not feel free to leave)

3.  Interrogation (something reasonably likely to elicite an incriminating response)

 

Notice that no where above does it say you must be read your rights after being arrested because you dont. 

often the police will arrest you and not read you your rights because the detectives want to read you your rights because if you invoke your rights all questioning must stop.

and the officer arresting you often does not want you to do that so he will not read you your rights.

Getting back to the original question of should I talk to the police.  Many times the offier will conduct the interview in a manner in which he does not have to read you your rights such as at your home, ie not in custody therefore, no Miranda warnings are needed. 

If you make statements to that officer they can and will be used against you regardless of whether you were read your Miranda rights because you are not in custody and Miranda Warnings are not needed.

The police are usually working on a set theme of how they believe things happen.  I have seen detectives simply disregard obvious exculpatory evidence that does not match with there set theme of how they believe something happened.  Thus another reason you should immediately obtain legal assistance if you are being asked to give any type of statement to law enforcement. 

That is not to say  that I you should never give a statement to law enforcement, there are certain circumstances where after speaking with an Attorney the Attorney will have you speak to police if he believes it is in your best interest to do so. 

Sometimes the Attorney will provide a written statement to police rather than have you make an in person statement.

Or if the Attorney feels there is nothing you could possibly say that is incriminating he may allow a statement, usually these type of meeting will  occur in the presence of an Attorney and the Attorney can always stop the interview, or only agree to allow the answering of certain questions. 

As you can see the decision of whether or not to make a statement to police can be complicated, call us immediately if you have any questions.   

As with all criminal charges, a person charged with DUI, Driving Under the Influence, is presumed innocent unless he’s proven guilty. If guilt is eventually determined, the defendant faces certain penalties, including fines and possible jail time. Here, we’ll explain some more common penalties regarding DUI convictions. While this will provide you with some basic information about what happens after a conviction, it's best to consult with an experienced DUI attorney, as each case is different and penalties vary depending on the severity.

Petty theft is a Misdameanor in the state of California.  However there could be very harsh penalties associated with a Petty Theft conviction.  First the Petty theft conviction is priorable.  Meaning the penalties get more severe if you are convicted more than once. 

And Petty theft convictions could have adverse consequences for your Immigration status as Petty Theft is a crime of Moral Turpitude.  Many times Petty Theft will fall under a petty crimes exception for Immigration purposes. 

You should hire an Attorney for several reasons for a Petty Theft arrest.

1.  If you hire a private attorney you can in fresno county have what is referred to as a 977 appearance meaning you will not have to show up in court possibly saving you many hours of lost time in court.

2. We can negotiate with the Prosecutor for a diversion before entering a pleas.  This will save you from having this theft related offense on your record. 

3.  If the case goes to trial, or you think it will go to trial you should pay the civil assessment that the store will send you.  I have seen several cases where the store refused to come to court after a case was set for trial because they have already been paid. 

There are several other defenses to Petty Theft that are out there.  You should defenitely contact an Attorney regarding your legal rights and what you can do to help yourself. 

The max you could recieve as a result of a Petty Theft is 180 days in jail.  However, it is usually much less than that.  Even if you are not given a pre-plea diversion usually your case will be referred for diversion and if you complete the petty theft awareness class you case will be dismissed.  However, if this occurs after a plea or post plea than the offense will show on your record. 

However, after you have successfully completed probation, you could be eligible for an expungement of your record.  The expungement is only needed if you pleaded guilty and then completed the diversion program.  If you did diversion first, before plea or pre-plea, you do not need to go through the process of an expungement. 

If you have any questions do not hesitate to call.

 

 

If you have been cahrged with Robbery it is imperative that you recieve legal advice immediately. As a Criminal Defense Attorney with more than 13 years of experience in Criminal Law, and having represented many people charged with Robbery you are in the right place. 

Penal Code 211 California's Robbery Law punishes the crime of taking someones elses property from the person's body or immediate possession, when accomplished by force or fear.   This is a Felony offense punishable by two to nine years in the state prison. 

But were here  to help As a Former prosecutor, and probation officer, and Criminology Instructor with more than 13 years of experience in criminal defense I have the knowlege to defend you agains these type of charges. 

Below I will address the following

The Legal Definition of Robbery in California

Legal Defenses

Penalties, Punishment, and Sentencing

Related Offenses

If after reading this article you have any questions do not hesitate to call

The legal definition of Robbery in California

In order to be Convicted of Robbery, the Prosecutore must prove the following facts (otherwises known as elements of the crime):

1. You took property that did not belong to you

2. from another persons possession or immediate presence,

3. against that persons will

4. using force or threats

5. when you took the property, you intended to deprive the owner of it permanently or such an extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

 

Robbery is whats known as a continuing offense, which means that as long as each of these elements is satisfied before the crime is completed, there is no requirement that they occur in any specific order or at the same time.

And a Robbery is only completed once the "Robber" is caught.  or has reached a place of safety. 

on a similiar note, as long as each of these elements is met the value of the property stolen is irrelevent.  It can be of any value no matter how slight.  lets take a closer look at some of the elements

That you "took" the property

1. gaining possession of the alleged victims property and

2. carrying away

"Carrying away"

"Carrying away" requires at least some movement, no matter how slight, and even if you immediately return the property you took,  that fact does not negate the robbery.

Example during an attack, Shawn (who is outside the car) reaches into the car and grabs Carrie's purse.  He looks through it, decides not to take anything from it, and gives it back. 

Even though he gave the purse back almost immediately that fact that he moved the property slightly from the car is enough.

Possession

The alleged victim must actually or constructively possess the confiscated property in order for the offense to qualify as Penal Code 211 Robbery, he or she does not need to be the owner of the property, as long as he or she possesses the property. 

That means that the store employee or the or even a customer who is forced to give up his  property can qualify as a Robbery victim.

 

Immediate Presence

property in the "immiediate presence" of a person if it "is so whithin his reach, inspection, observation, or control, that he could if not overcome by violence or prevented by fear, retain possession of it.

This broad definition means that the object doesn't necesarily have to be on the victims person but just in an area where he or she could logically control the item. 

Example in people v. webster, the defendant was convicted of robbery when he forcefully took the victims car keys in order to take the victims car. Even though the car was a quarter of a mile away, the court upheld the "immediate presence" requirement since the victim had constructive possession (that is he held the keys) and it was within such a distance that he was logically connected to it and would have controlled it if he had been able to. 

Agains the Persons Will

"Against the person will" simply means without consent, if the force or fear (discussed below) were such that is leads to the alleged victim surrendering he money or othe property this surrender must be agains the persons will

that said you can actually rob a person even if that person doesn't actually  know tha property has been taken until after you flee.  As long as you do not affirmatively consent to the property being taken. 

Example

When Sam arrives home, Rick (who broke in) is there, the two struggle while Sam tells Rick to leave.  Once Rick is gone Sam realizes that his girlfriends watch is missing.

Given these facts, the court stated that because Rick used force to take Sam's watch without permission even though Sam didn't know Rick took the watch until after he left Rick was still guilty of Robbery.

 

Legal Defenses to Property

If you didn't intend to take or keep the property but only did so after you used force or fear incidental to some other purpose you aren't guilty of Robbery. 

 

expample Ruben forces stephanie (who is wating at the bus stop) to get into his truck he drives off to a field and rapes her and drops her off.  when he leaves he has her purse in his car this is not robbery.  Because there is no reason to believe he intended to take her purse. 

No force or Fear

if you take someones elses property but do not use force or fear to accomplish this, you do not violate penal code 211.  You could be guilty of another theft offense. 

Claim of Right

if you rob someone but only because you have an honest belief tha the specific property you are taking rightfully belongs to you California's robbery law does not apply to you. As long as the belief that it is honest even if unreasonable. 

Mistaken Identity

Because robberies often involve people who wear masks or other items of clothing to shield there identity, innocent people are often falsely accused of this offense.    This could be the case for a number of reasons, the most common of which includes the fact that you happen to match a description of the actual perpetrator. 

height weight etc.

 

False accusation

Similiarly, somoene could falsely accuse you of Robbery for a variety of reasons.  Perhaps the actual perpatrator is trying to cover up his own culpability.   Maybe an angry or jelous spouse is  trying to gain control over you.  

 

Strike Offense

A Robbery is a strike offense, also it is considered a violent offense which means you will be required to spend 85 percent of your time in custody before being eligible for release. 

 

 

California prositution and solicitation laws can be complex and convictions for this offense could have consequences for you license, severe Immigration consequences as well as provide a basis for a moral turpitude violation.

As a Former, Probation Officer, Deputy District Attorney, and Adjunct Criminology Instructor, and a Criminal Defense Attorney for more than 13 years, I can help you through an arrest or a charge for this type of case do not hesitate to call if you have been arrested for this crime because the consequences can be very severe.

If you are in the process of getting your Green Card or in another Immigratio matter you should immediately tell your Attorney about even an arrest for this prostitution or solicitation.

Under Immigration law even a first offense of solicitation or prostitution can be severe, and delay your citzenship application.  Most time you will not be deported for prostitution on a first offense.  This is because Prostitution many times falls in the petty crimes exception even though prostitution is always considered a moral turpitude crime. 

On a second offense deportation is possible.  Please Immediately call an experienced Immigration Attorney if you are arrested for a prostitution offense.

 

If you work as a massage therapist a prostitution arrest will usually result in the immediate suspension of your license if you work in  a town or city that requires licensing through a state agency. 

If you do what is referred to as pre-plea diversion than your license will be re-instated after you complete your diversion class.

A diversion clas is usually a life skills class or a prostitution abatement class, usually lasting one day depending on the county and city in which you were arrested. 

A Post Plea dversion is very different, the post plea diversion has a very different outcome.  This is true for both licensing and Immigration, for licensing and Immigration a Post Plea diversion is considered a conviction.  Therefore, the temporary revocation of your license will become a two year permanent revcocation.  You can re-apply in two years.

Immigration does not recognize post plea diversions, and will count your plea as a moral turpitude violation having serious consequences for you Immigration status. 

Many times Attorneys will plea a client to Penal Code violation of disturbing the peace with an agreement for jail time just to avoid the serious consequences that a person faces for a conviction. 

If you are found not guilty by Jury or court trial the action against you on both you license and Immigration is stopped and you will not face those consequences. 

 

Typically there is often a lot of political and social pressure placed on law enforcement regarding prostitution.  Therefore Police will often expend a tremendous amount of resources on this problem.

 

1. overview of Penal Code section 647 b/ prostitution and solicitation of prostitution

Todays Calfornia Laws allow the police to arrest the

prostitute and

the John or person soliciting the prostitute

And other middlemen known a pimps who live of the proceeds of a prostitute. 

Undercover sting operations are a common way for officers to make a prostitution arrests.  Police monitor massage parlors, strip clubs, and the streets in order to bust prostitutes and or Johns.

 

 HOW DOES THE PROSECUTOR PROVE THAT I AM GUILTY OF PROSTITUTION OR SOLICITATION OF PROSTITUTION UNDER PENAL CODE SECTION 647 B.

In order to prove engagin in an act of prostitution, the prosecutor must prove that you

1. engaged in an act of prostitution

2. that you did so willfully

'prostitution means engaging in sexual intercourse or any lewd act with another person in exchange for money or other consideration.

 

a "lewd" act is defined as any act that involves touching the genitals, buttocks, or female breast of either person by another person that is done with the specific intent to arouse or sexually gratify. 

"willfully means dilleberitely or on purpose.

SOLICITING PROSTITUTION

In order to convict you of soliciting prostitution, the prosecutor must prove

1. solicited another person to engage in an act of prostitution

2. that you did so with the specific intent of engaging in an act of prostitution

Depending on the nature of the exchange and who initiated the interaction prosecutors could charge the offense against the prostitute or the customer.

 

"soliciting" means to lure entice or elicit.  however, simply soliciting another person without more is insufficient to uphold a conviction for soicitation of prostitution. 

solicitation calls for specific intent of engaging in an act of prostitution typically evidenced by an offer to pay money or other compensation for sex.  not by a simple hand gesture or way of dress.  This is important because a mere gesture or short skirt is not enough even if in a high prostitution area. 

 

WHAT IS AGREEING TO ENGAGE IN AN ACT OF PROSTITUTION

In order for you to be convicted of engaging in an act of prostitution, the prosecutor must prove

1. that you agreed to an act of prostitution

2. that you did so with the specific intent of engaging in an act of prostitution,

and

3. that in addition to the agreement, you performed an act in furtherance of prostitution

 

It is not enough to agree to do an act of prostitution you must do an act in furtherance.

It does not matter what the act is, as long as it clarrifies or corroborates the fact that an act or agreement was reached.  It is important to note that this act can take place before, during, or after the agreement.  When the act takes place is important that the act actually took place. 

Another noteworthy point is that " the act in furtherance" must be clearly stated in the formal written charge against you (otherwise known as the complaint) if it isnt it is a due process violation and could result in the dismissal of the charges against you. 

It should be noted that possession of condoms

large amounts of money

possession of "client book" and or

your attire

may all reveal evidence that you are guilty of one of the above offenses.  However, none of these "evidentiary items " themselves prove the charge by themselves. 

Penalties punishment, and sentencing

read above for some of the consequences.  First, a conviciton of prostitution charge is a Misdamenor punishable by up to six months in jail. In Fresno County first time offenders are usually offered post  plea diversion and a dismissal. 

If you were committed the offesne while using a car, and 2. within 1,000 feet of a residence you could face the towing of your vehicle and revocation for up to 30 days. and a restricted license for up to six months. 

SEX OFFENDER REGISTRATION

Like the crime of statutory rape, prostitution crimes are discretionary meaning it is up to the court to decide if the offender will have to register as a sex offender.

Usually the Judge will only order this registration if he finds you have a sexual compulsion or as a reapeat offender. 

HOW DO I FIGHT A PENAL CODE SECTION647B CHARGE

1. Entrapment many times these decoy officers lure othewise law abiding citzens to commit crimes of solicitation or prostitution

2. lack of credible evidence in many "sting operation" in massage parlors the police will send in a informant to ask the women to perform and act of prositittion many times with no words being said. and only hand signals then when the women supposedly agrees the officers do a bust signal and the women is arrested.

this is entrapment

lack of credible evidence because it is a he said she said with no creidible evidence the women ever agreed to anything.  Many times I have represented women who said the informant was aggressive and made several statements and she said nothing.  the hidden mike also never picks up the women saying a word. unfortunately many times the women are to scared to testify in court and take plea agreements based upon there fear of law enforcement. 

3. lack of evidence

many times the cases are he said she said with noting picked up on the mike

Mistake

many times the massage parlor workers do not speak english and there may be cultaral or other mistakes leading to the arrest of these often times scared women.

 

If you have been arrested for a prostitution related offense please do not hesitate to call.

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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