Thursday, December 29, 2011
Wednesday, December 28, 2011
EMS Providers, this New Years Eve you can choose a $20 or $100 cab ride home or risk the DUI, what's it going to be? http://bit.ly/bbJ3B0
Thursday, December 22, 2011
Like the Internet in the early 90s, Internal Affairs in EMS is a lanky 13-yo with parts that require getting used to. http://bit.ly/rTF00C
Tuesday, December 20, 2011
Saturday, December 17, 2011
Emergency Medical Services providers, here is a neatly organized stack of EMS websites for you: http://ow.ly/82RlP
Businesses succeeed when the owner has a great supporting team. Consider these 8 people for you! http://ping.fm/VNBA5
I've just begun using Delicious.com to organize & save websites. I'm looking for folks to follow. Know anyone? http://ping.fm/OvMZN
Friday, December 16, 2011
If you are an EMS Provider, here is a tidbit you NEED to know: There is only 1 call that matters! http://ping.fm/SYlOp
Monday, September 5, 2011
California Penal Code §240: Assault
In California, the crime of "assault" occurs when you perform an act that is likely to result in the application of force to another person. There is no requirement that an assault must actually result in a violent or forceful act upon another.
For the crime to be complete, you:
1. attempted to commit such an act, and
2. had the ability to do so.
Also known as "simple assault," California Penal Code §240 is a misdemeanor when the alleged victim doesn’t suffer any significant injury.
On the other hand, Penal Code §245(a)(1) "aggravated assault" (a.k.a. "assault with a deadly weapon" or ADW) occurs when
1. you use a deadly weapon or other instrument capable of producing great bodily injury, and/or
2. the alleged victim is seriously injured.
Assault with a deadly weapon is clearly a far more serious charge, involving the more serious assault offenses.
Is it Assault or Battery?
Thanks to TV and movies, most people wrongly believe that "assault & battery" is a single crime or that they are the same crime. In reality, Assault is quite different from Battery.
A Battery occurs when you actually use force or violence against another person, whereas an assault is merely an attempt to inflict harm.
Elements of Assault
Before you can be convicted of "simple" or "misdemeanor" assault in California, the prosecutor must prove the following three elements, beyond a reasonable doubt:
1. that you "willfully" acted in a way that would likely result in the "application of force" to another,
2. that you were aware that your "act" would likely result in that application of force, and
3. you "willfully acted" with the present ability to follow through with the act that would cause that contact.
In this context, "willful" means intentional, rather than accidental. It does not mean that you necessarily
1. intended to injure the other person, or
2. intended to break the law.
For purposes of Assault, "application of force" simply means any touch…no matter how slight…if the touch is done in an angry, harmful, or even offensive manner. Plus, the physical contact (or touching) can be through one’s clothing or even indirectly through an object or another person. Pain or injury are not required. The touching is enough.
To be convicted, the jury must believe that you were "aware" that your act would likely result in harm.
Under California Penal Code §240 "assault" is a misdemeanor. If convicted of this offense, you face any or all of the following penalties:
• California misdemeanor probation (informal probation), which is typically imposed for up to three years,
• up to six months in the county jail,
• a maximum fine of $1,000,
• successful completion of a batterer’s program, and/or
• community service.
Beware, if the assault or battery was on a California police officer (or other "protected person") the sentence can be significantly increased.
How can the Law Offices of David J. Givot defend a California Assault Allegation?
An arrest is NOT a conviction!
There are several defenses that may be available.
Inability to Carry Out the Assault
A California Penal Code §240 PC assault necessarily includes a "present ability" to commit a violent injury upon another. This means that you are not guilty of assault if your act can’t be carried out.
Self-Defense or Defense of Others
California self-defense law provides that if you have a reasonable and honest belief that you or another person is about to be seriously hurt by another, you are allowed to "reasonably" fight back.
Lack of intent
If you didn’t "willfully" intend to commit a violent injury upon another, you aren’t guilty of a California "assault" under California Penal Code §240.
False Charges or Wrongful Accusations
Because there is no requirement that the alleged victim suffers an actual injury under Penal Code §240, it is a crime that is easily falsely reported out of anger, revenge or jealousy.
The bottom line is this: An assault may seem relatively minor, but it can create some very serious complications in your life. You have the right to an attorney and it is a right you should take seriously.
If you have any questions about Assault in California or if you or a loved-one has been accused, contact the Law Offices of David J. Givot right away.
Sunday, August 7, 2011
Friday, July 15, 2011
California Prostitution & Solicitation Laws
Penal Code §647(b) PC
Yes, it's the “oldest profession in the world,” yet to this day prostitution is prosecuted aggressively as a crime throughout California. Prostitution is most simply defined as exchanging money, goods, or services for a sexual act.
California prostitution law under Penal Code 647(b) PC prohibits
• engaging in the act of prostitution, and
• offering or agreeing to engage in a sexual act (otherwise known as “solicitation”).
After reading this article, you may be left with additional questions. The Law Offices of David J. Givot welcome your call at 888/293-0396.
Closer Look at Prostitution
California Penal Code §647(b) PC
The exchange of sex for other goods or services is as old as time. But it wasn’t until 1961 that California introduced Penal Code 647 prohibiting “disorderly conduct,” which includes prostitution.
In fact, in that era of "free love," Penal Code 647(b) PC only penalized soliciting or engaging in acts of prostitution. Actually agreeing to acts of prostitution wasn’t prohibited until 1986. Plus, as an added protection against California entrapment defenses that were frequently raised by those arrested for solicitation or prostitution, the California Legislature added another requirement to Penal Code 647(b) PC. The new requirement said that, in order to convict a defendant of agreeing to engage in an act of prostitution, the prosecutor also had to prove that the defendant committed an act in furtherance of the agreement to engage in an act of prostitution.
Today it is as tough as ever because California prostitution laws allow law enforcement officers to arrest the prostitute, the customer, a.k.a. the “john,” and (where appropriate), the middleman, otherwise known as a pimp.
The “pimp” is arrested if he/she (1) arranges or participates in soliciting the agreement, or (2) in procuring the prostitute under Penal Code 266h and/or 266i. These California Penal Codes are commonly referred to pimping and pandering.
Police attack prostitution by monitoring massage parlors, strip clubs, and the streets in order to bust illegal prostitution operations. Carefully choreographed undercover or “sting” operations are a common way for officers to make prostitution arrests. All too often, officers will pose as “johns” responding to online advertisements for “call girls,” “escorts,” or girls just “looking to have fun.” Crafty officers have become adept at dressing, acting, and playing the part of the horny out-of-towner looking for a quickie.
Proving Guilt under Penal Code §647(b) PC
The prosecution can prove guilt in one or more of these three basic ways, depending on the facts of the arrest.
Engaging in an act of prostitution
In order to convict you of engaging in an act of prostitution, the prosecutor must prove that you
1. engaged in an act of prostitution, and
2. that you did so willfully.
Soliciting prostitution
In order to convict you of soliciting prostitution, the prosecutor must prove that you
1. solicited another person to engage in an act of prostitution, and
2. that you did so with the specific intent of engaging in an act of prostitution.
Depending on the nature of the exchange…and on who initiated the interaction…prosecutors could charge this offense against the prostitute or the customer.
Keep in mind, soliciting another person requires an overt act. It is not enough to simply be present in a particular place known for prostitution; or to wave to a passing vehicle, nod to a stranger, or even stand on a street corner in a miniskirt. Soliciting prostitution calls for more.
Solicitation requires the specific intent to engage in an act of prostitution. This intent is typically evidenced by an offer to pay money or other compensation (typically drugs) in exchange for sexual acts…not by a simple unspoken gesture or appearance.
Interestingly, one court has even gone so far as to require a third element for this offense; that the individual being solicited must actually receive the solicitation. Therefore, if your attorney can prove that no one actually received your offer to pay for sexual services, you can’t be convicted of this charge. Maybe the prostitute didn’t hear you or a pimp didn’t convey the offer.
Unfortunately, that argument won't save the day entirely. Prosecutors could instead charge you with attempted solicitation. The exposure on that charge is up to three months in jail and a $500 fine (which is half the maximum amount of jail time and half the maximum fine that are imposed in connection with Penal Code 647(b) charges).
Agreeing to engage in an act of prostitution
In order to convict you of agreeing to engage in an act of prostitution, the prosecutor must prove that you
1. agreed to engage in an act of prostitution with another person,
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.
This offense is closely linked to soliciting prostitution. The person who solicits will be charged with soliciting, the person who accepts the solicited invitation will be charged with agreeing to engage in prostitution. Now, they have you both.
Prosecutors can charge you with this offense even if the person who made the offer or solicitation didn’t possess the same intent. This would be the case if, for example, the “prostitute” was really an undercover decoy officer whose only intent was to lure you into agreeing to the act.
It is the third element that makes this charge unique. It isn’t enough to have the specific intent to engage in an act of prostitution. You must perform an act in furtherance of prostitution.
An act “in furtherance of prostitution” means something more than just accepting the solicitation.
Under California prostitution laws, “act” could be
• driving to an agreed upon location where the sexual activity will take place,
• a verbal command, such as instructing the prostitute to undress (words are sufficient to constitute an “act in furtherance” as long as they are clear and unambiguous),
• handing over the agreed upon payment, or
• withdrawing money from an ATM in order to pay the other person.
It doesn’t matter what the act is, as long as it clarifies or corroborates the fact that an agreement to engage in an act of prostitution has been reached. It is important to note that this act can take place before, during, or after the agreement.
Remember, When the act takes place is not important…it is enough that the act takes place.
An aggressive and well-informed attorney knows that this “act in furtherance” must be clearly stated in the formal written charge against you (the “complaint”). If it isn’t, it is a Due Process violation that may result in a dismissal of the charge.
It should finally be noted that any evidence such as
• possession of condoms,
• large amounts of money,
• possession of a “client book,” and/or
• your attire
may all be used as evidence that you are guilty of one of the above offenses. However, none of these “evidentiary” items are sufficient in and of themselves to prove that you are guilty of Penal Code 647(b) prostitution.
Penalties, Punishment, and Sentencing for Prostitution and Solicitation of Prostitution
Prostitution, solicitation, and agreeing to engage in an act of prostitution under Penal Code 647(b) PC are all misdemeanor offenses. If convicted, you face up to six months and/or up to $1,000 in fines - plus penalties and assessments that can be upwards of 200% - 400% of the base fine.
Prostitution / solicitation is a “priorable” offense, which means that the punishment necessarily increases with each subsequent offense.
If you are convicted for your second prostitution or solicitation offense, the judge can order a minimum of 45 days in a county jail.
If you are convicted of a third prostitution or solicitation offense, the judge can order a minimum of 90 days in a county jail.
In addition to these penalties, if you committed the offense (1) while using a car, and (2) within 1,000 feet of a residence, the court may
• suspend your license for up to 30 days, or
• issue you a restricted license for up to six months.
If the judge grants you a restricted license, you will be allowed to drive to and from work or school. If driving is a necessary part of your employment, a restricted license also allows you to drive within the scope of your employment. But, don't stop at the deli or the market. Doing so would be a violation of probation.
It is also important to note that if you commit one of the above offenses in Los Angeles while in your car, the government may seize and forfeit your vehicle in addition to the above penalties.
Registration as a Sex Offender under California Penal Code §290 PC
Although neither prostitution nor solicitation under Penal Code 647(b) requires automatic registration as a sex offender pursuant to California Penal Code 290 PC, the judge could order you to register as part of your sentence. As a practical matter, this provision is rarely, if ever, imposed in connection with prostitution cases.
Nevertheless…
If the judge finds that you engaged in (or solicited or agreed to engage in) an act of prostitution “as the result of sexual compulsion or for sexual gratification,” he/she can order you to register as a sex offender. Incidentally, failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, which subjects you to additional criminal penalties.
You Need to Fight a Penal Code Penal Code §647(b) PC Prostitution or Solicitation Charge!
The perceived disgrace of having a prostitution / solicitation charge on your criminal record can damage your reputation, career, and family life. Because of this, it is important to consult with a California criminal defense attorney who knows the most effective ways to fight your Penal Code §647(b) PC charge.
In some cases, the facts may be such that going all the way to trial is worth the inherent risk. In other cases - most cases - a negotiated reduction is a safer alternative. The two most common prostitution charge reductions are “disturbing the peace” under Penal Code §415 PC and Penal Code §602 Trespass. While neither of these charges really has anything to do with prostitution or solicitation, they allow the agencies to collect the various fines and fees and are crimes that send a signal to other law enforcement agencies that you originally faced a prostitution charge.
Where the potentially beneficial facts exist, there are a variety of defenses that your California prostitution defense attorney can present on your behalf in an effort to secure your acquittal.
Entrapment
The California legal defense of entrapment is useful since a large number of prostitution / solicitation arrests are made using undercover “decoy” officers. These undercover officers typically pose as prostitutes, but sometimes they pose as “johns” as well. The officers participating in these undercover sting operations try to get suspects to agree to engage in (or to engage in) acts of prostitution.
The problem is that many of these “suspects” are otherwise law abiding citizens who were unfairly lured into the offense by savvy cops. Therefore your aggressive defense attorney will explore the California legal defense of entrapment as a possible prostitution / solicitation defense.
Lack of trustworthy evidence
This is an effective defense, especially with respect to Los Angeles prostitution / solicitation cases, where there is no recorded evidence of the “agreement” to engage in prostitution. For example, the LAPD frequently wires their undercover officers but doesn’t record the conversations between the cop and the prostitute or “john.”
This raises a red flag for jurors. If the officer was wired, why didn’t he/she record the conversation for evidence? What is the officer hiding? Is he/she lying? Exaggerating? Without hearing the conversation itself, jurors are hesitant to convict on a California Penal Code §647(b) charge.
Insufficient evidence
This defense is different from the one above. It doesn’t apply so much to the evidence that is presented, but rather, the evidence that is lacking.
“Insufficient evidence” encompasses a number of issues. Maybe the agreement was more ambiguous conversation than clear solicitation. Maybe there was an agreement to engage in sex, but no agreement that it would be for money or other consideration.
Perhaps there was no act in furtherance of the agreement to engage in sexual activity. Perhaps the solicitation was only a joke and there was no actual “specific intent” to engage in sexual intercourse or any other lewd act.
Mistake
One who does NOT specifically intend to engage in a sex act, CANNOT be convicted of this offense. Period.
This means that if you reply to a “call girl” or “escort” service ad, intending only to secure a date or companion, you can’t be convicted of a prostitution / solicitation offense.
Similarly, just because you were found in a place known for prostitution (a certain intersection, or in a certain “massage” parlor, for example) doesn’t mean you were actively involved in prostitution / solicitation.
Other Prostitution-Related Offenses
The "(a)" Count: Penal Code §647(a) lewd conduct in public
Penal Code §647(a) lewd conduct in public is commonly charged in connection with a prostitution charge if the prostitution act takes place in a public place.
For example, police agents may set up a surveillance post to ‘watch’ a known prostitute. As soon as the police see a 'John’ make contact with the prostitute, they follow the suspects, usually to a dark street or parking lot away from others. Once they engage in an act of prostitution (typically in the locked car), the police approach and arrest both parties for 647(a) and 647(b).
However, a skilled prostitution defense attorney knows that, since the police are only watching from a distance, they don’t know exactly what conversation took place between the parties. As a result, it’s often very difficult for the prostitution charge to stick, unless either of the parties (which is usually the customer) admits to the agreement. REMAIN SILENT!
If you stay quiet and invoke your right to remain silent, you will usually only get charged with 647(a) lewd conduct in public.
Lewd conduct in public is not only a less serious offense…it isn’t priorable like a prostitution charge…but it’s also difficult to prove when it takes place according to the above scenario. This is because a lewd conduct charge requires the prosecutor to prove that your conduct took place in a public area where you knew or reasonably should have known that someone who may be offended by the conduct was present.
Penal Code §314, indecent exposure in California
Penal Code §314, California indecent exposure laws prohibits “exposing” your genitals in public. While it may seem that an act of prostitution could additionally trigger this charge, this typically wouldn’t be the case.
In order to be convicted of indecent exposure, you must intend publicly to direct attention to your genitals. Since many prostitution cases take place in private cars or other remote, secluded areas, these types of cases do not justify this charge.
California Penal Code sections §266h and §266i PC pimping and pandering
Penal Code sections §266h and §266i PC California's pimping and pandering laws were enacted to discourage the expansion of prostitution. Although they are two separate laws, they both prohibit conduct that revolves around prostitution.
Penal Code §266h PC essentially bans collecting all or part of a prostitute's pay. You violate Penal Code §266i PC when you arrange or "make available" another person for the purpose of prostitution.
Both crimes are felonies, subjecting an offender to three, four, or six years in the California state prison.
California Penal Code §261 rape
California Penal Code §261 rape is defined as nonconsensual sexual intercourse. While it may seem like this charge therefore wouldn’t apply in a situation where there is an “agreement” to engage in an act of prostitution, it still could.
Even though sexual intercourse may be consensual in the beginning, if at any point it’s not, the forced act could be classified as rape. If, for example, the customer is being too rough with the prostitute, and she asks him to stop, and he refuses to, he could face liability for prostitution and Penal Code §261 rape.
Terms Defined
“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 gratify sexually.
“Willfully” means deliberately or on purpose. It does not require an intent to break the law.
“Soliciting” means to lure; to try to induce or elicit.
Legal References:
California Penal Code 647 -- Disorderly conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.”)
The Law Offices of David J. Givot can fight your case in all of California. We have experience in Los Angeles, Beverly Hills, Glendale, Long Beach, Pasadena, Pomona, Torrance, Van Nuys, West Covina, Downey, Bellflower, Norwalk, Westminster, Fullerton, Whittier, and beyond. We represent clients accused of prostitution and solicitation throughout California.
Prostitution in the United States. (“In the 19th century, parlor house brothels catered to upper class clientele, while bawdy houses catered to the lower class. At concert saloons, men could eat, listen to music, watch a fight, or pay women for sex. Over 200 brothels existed in lower Manhattan. Prostitution was illegal under the vagrancy laws, but was not well-enforced by police and city officials, who were bribed by brothel owners and madams. Attempts of regulate prostitution were struck down on grounds that it is again the public good. Seventy-five percent of New York men had some type of sexually transmitted disease.”) Taken from “XY factor, Prostitution: Sex in the City (History Channel).
California Penal Code 647 Historical and Statutory Notes: (“As added in 1961, the section read: “Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: “(b) Who solicits or who engages in any act of prostitution.”)
See same. (“The 1986 amendment by Stats.1986, c. 1276, rewrote subd. (b) [of California Penal Code 647 regarding prostitution / solicitation]…”)
Kim v. Superior Court (2006) 136 Cal.App.4th 937, 941. (“The provision expanding section 647(b) to permit conviction for an agreement to engage in an act of prostitution was added by the Statutes of 1986, chapter 1276, section 1, pages 4457-4459 (Sen. Bill No. 2169). Senator David Roberti sponsored the bill on behalf of the City of Los Angeles. (Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986, p. 1.) At the time of the bill's introduction, unlike 24 other states with prohibitions against agreements to engage in lewd acts for money, California law barred only prostitution and its solicitation. ( Ibid.) According to the proponent, “most prostitutes kn[e]w that if they wait[ed] until a customer mention[ed] money or sex, and then simply approve[d] the conditions, they [could not] be found guilty of soliciting prostitution. Consequently, street-wise prostitutes rarely ‘solicit [ed]’ prostitution, and undercover officers posing as customers often [were] unable to make arrests for prostitution.” ( Ibid.) The legislation was, therefore, “intended to give police another enforcement tool” on “prostitution laws that [were] difficult to enforce.” ( Ibid.)”)
See same at 942. (“Senate Bill 1276 initially prohibited only the agreement to engage in an act of prostitution. (Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986.) To minimize false arrests, entrapment and use of the entrapment defense, however, the bill was amended prior to passage to include the language requiring an act in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. (Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986; Sen Com. on Judiciary, Analysis on Sen. Bill. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986, pp. 4-5; Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as introduced June 30, 1986, pp. 2-3; Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986, pp. 3-4.)”)
California Penal Code 266h -- Pimping and pimping a minor; punishment. (“(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.”)
See also Penal Code 266i -- Pandering and pandering with a minor; punishment. (“(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.”)
California Jury Instructions – criminal. CALJIC 16.420 – Prostitution. (“In order to prove this crime, each of the following elements must be proved: [1] A person engaged in an act of prostitution; and [2] The person did so willfully.]”)
See same. (““Prostitution” is engaging in [sexual intercourse] [or] [any lewd act between persons] for money or other consideration. [“Lewd act,” as used in this instruction, means any act which involves the touching of the genitals, buttocks, or female breast of one person by any part of the body of another person and is done with the intent to sexually arouse or gratify.]”)
CALJIC 1.20 -- Wilfully defined. (“The word “willfully” when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.”)
CALJIC 16.420 -- Prostitution. (“[1] A person solicited another person to engage in any act of prostitution; and [2] That person did so with the specific intent to engage in an act of prostitution.]”)
Leffel v. Municipal Court (1976) 54 Cal.App.3d 569, 575. (“The words, ‘every person . . . who solicits . . . any act of prostitution’, are clear and unambiguous. ‘Every’, means ‘each and all within the range of contemplated possibilities.’ (Webster's New Internat. Dict. (3d ed. 1961) Unabridged, p. 788.) ‘Solicit,’ means, ‘to . . . entreat or importune . . .: to approach with a request or plea.’ (Supra, at p. 2169.) ‘Prostitution’, means, ‘the act or practice of indulging in promiscuous sexual relations esp. for payment.’ (Supra, at p. 1822.) Thus, the ordinary meaning of the statute is that All persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct.”)
People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345. (“‘Solicit’ was defined in a related context-soliciting for a prostitute, i.e., pimping (Pen.Code, s 266h)-in People v. Phillips (1945) 70 Cal.App.2d 449, 160 P.2d 872. “To tempt (a person); to lure on, esp. into evil, . . . to bring about, forth, on, etc., by gentle or natural operations; to seek to induce or elicit; . . .(‘) (Webster's New International Dictionary (2d ed.) (.)) ‘To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain. . . .”)
In re White (1979) 97 Cal.App.3d 141, 147. (“Mere presence at a particular place, without more, does not amount to solicitation. Nor, without more, is “ ‘waving to a passing vehicle, nodding to a passing stranger, or standing on a street corner in a miniskirt’ ” (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 346, 138 Cal.Rptr. 66, 69, 562 P.2d 1315, 1318). There are simply innumerable situations in which a probationer could be in the map area which are unrelated to prostitution. The condition relates to conduct which is not criminal. Many perfectly legal activities are covered by this condition which have no relationship whatsoever to soliciting…”)
People v. Love (1980) 111 Cal.App.3d Supp. 1, 15. (“By contrast, the trial court's instruction that the specific intent required was “to communicate to another an offer of sex for money or other consideration” would make the crime of solicitation a general intent crime. Under the Hood, definition of the act would be accomplished and completed as soon as the words of solicitation were spoken. The “communication” of the offer is only one element of the crime and the trial court's definition thus leaves out an essential element of the offense. A defendant is not guilty of the offense unless he or she seriously intends to carry through by performing an act of prostitution. A mere speaking of the words of solicitation is not enough for conviction of this offense.”)
People v. Saephanh (2000) 80 Cal.App.4th 451, 459. (“Uncommunicated soliciting messages do not expose others to inducements to commit crimes. Nor is there a likelihood that an uncommunicated message would result in the commission of crimes. Thus, letters posted but not delivered do not give rise to the dangers from which section 653f seeks to protect society. However, messages urging commission of a crime which are received expose individuals to invitation to crime and create a risk of criminal activity. Criminalizing completed solicitations furthers the policies of protecting individuals from exposure to inducements to commit crimes and preventing commission of the crimes solicited. Thus, a conviction for a violation of section 653f requires proof that the person solicited received the soliciting communication. One cannot “solicit another” without a completed communication. The communication is only completed when it is received by its intended recipient.”)
California Penal Code 664 -- Attempts; punishment. (“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted.” This includes acts of California attempted prostitution / solicitation.)
CALJIC 16.420 – Prostitution. (“[1] A person agreed with another person to engage in an act of prostitution; [2] That person did so with the specific intent to engage in an act of prostitution; and [3] In addition to the agreement, the person did an act in furtherance of prostitution.]”)
California Penal Code 647(b) -- Prostitution. (“A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.”)
In re Cheri T. (1999) 70 Cal.App.4th 1400, 1409. (“After coming to terms with Eldridge, appellant told him to drive to a dark place, presumably for the purpose of orally copulating him. We view this as an act in furtherance of the agreement to engage in an act of prostitution which occurred after the agreement was reached.”)
Kim v. Superior Court (2006) 136 Cal.App.4th 937, 945. (“Given the foregoing and bearing in mind the Legislature's concerns about false arrests and entrapment, we hold that words can be an act in furtherance. Not all statements will suffice; to constitute an act that satisfies the statutory requirement, the statements must be unambiguous and unequivocal in conveying that the agreed act of prostitution will occur and move the parties toward completion of the act.”)
In re Cheri T., endnote 11, above at 1407. (“It is not necessary to impose the additional requirement that the clarifying or corroborative act must occur after the agreement was made. For the reasons set forth above, such an interpretation would produce the absurd result of making the offense of agreeing to an act of prostitution coextensive with the previously existing crime of conspiracy. It would also create yet another potential loophole for the streetwise streetwalker, who could make his or her meaning clear, yet escape prosecution because the act by which he or she did so occurred before an agreement had been reached. That is precisely what happened here. Appellant first grabbed Eldridge's crotch to make sure he was not a police officer, then said he could touch her if he wanted to assure himself that she was not a police officer. Appellant did so to let him know she was not an undercover officer pretending to accept the solicitation for an act of prostitution but instead clearly intended to perform. Her conduct thus eliminated any ambiguities as to what she agreed to do. After that, she agreed to orally copulate Eldridge for $30. Her previous conduct and statements were in furtherance of that agreement.”)
Gaylord v. Municipal Court (1987) 196 Cal.App.3d 1348, 1350. (“Hence the issue presented in this proceeding is whether a complaint charging violation of section 647, subdivision (b) by agreeing to engage in an act of prostitution must specify an “act, beside the agreement ... in furtherance of the commission of an act of prostitution.” We conclude that a complaint must so specify and, inasmuch as the complaint in the instant case does not do so, petitioner is entitled to relief. (2) The language in section 647, subdivision (b) is clear. The provision clearly makes an “act in furtherance” an essential element of the offense of agreeing to engage in an act of prostitution; hence, absent an allegation of such an act a complaint does not advise the defendant of the charge against him and thereby denies him due process of law and fails to comply with the requirements of section 952.”)
California Penal Code 647 -- Prostitution/solicitation. (“(k) In any accusatory pleading charging a violation of subdivision (b), if the defendant has been once previously convicted of a violation of that subdivision, the previous conviction shall be charged in the accusatory pleading. If the previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 45 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 45 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 45 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 45 days in confinement in a county jail.”)
(“In any accusatory pleading charging a violation of [California Penal Code 647] subdivision (b) [prostitution/solicitation], if the defendant has been previously convicted two or more times of a violation of that subdivision, each of these previous convictions shall be charged in the accusatory pleading. If two or more of these previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 90 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 90 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 90 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.”)
(“In addition to any punishment prescribed by this section, a court may suspend, for not more than 30 days, the privilege of the person to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any violation of subdivision (b) that was committed within 1,000 feet of a private residence and with the use of a vehicle. In lieu of the suspension, the court may order a person's privilege to operate a motor vehicle restricted, for not more than six months, to necessary travel to and from the person's place of employment or education. If driving a motor vehicle is necessary to perform the duties of the person's employment, the court may also allow the person to drive in that person's scope of employment.”) )
Los Angeles Municipal Code 41.70 -- Nuisance vehicles – Prostitution. This code sets forth the requirements and procedures for seizing and forfeiting a car used in the commission of a prostitution offense.
California Penal Code 290.006 is part of what’s known as the “Sex Offender Registration Act.” It states that (“Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290 [such as stalking under Penal Code 646.9 PC], shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.”)
An individual failing to register as a sex offender under Penal Code 290 PC faces up to one year in county jail or up to three years in the state prison. Failing to register is a “continuing” offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.
California Penal Code 415 PC -- Fighting; noise; offensive words. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”)
California Penal Code 602 Trespass defines a variety of ways that an individual commits criminal trespass. Simply put, Penal Code 602 PC trespass prohibits entering another person’s property without permission to do so. Put another way, it is an illegal intrusion that interferes with the rights of another person’s property.
California Penal Code 647 -- Disorderly Conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”)
Judicial Council of California Criminal Jury Instruction 1161 -- Lewd Conduct in Public (Pen. Code, § 647(a)). (“The defendant is charged [in Count ] with engaging in lewd conduct in public [in violation of Penal Code section 647(a)]. To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant willfully engaged in the touching of ((his/her) own/ [or] another person's) genitals, buttocks, or female breast; [2] The defendant did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person; [3] At the time the defendant engaged in the conduct, (he/she) was in (a public place/ [or] a place open to the public [or to public view]); [4] At the time the defendant engaged in the conduct, someone else who might have been offended was present; AND [5] The defendant knew or reasonably should have known that another person who might have been offended by (his/her) conduct was present.”)
Penal Code 266h PC -- Pimping. (“("(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.")
See also California Penal Code 266i -- Pandering. ("(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.")
Thursday, April 28, 2011
Is It Time to Clean Up That Record?
Maybe the younger version of yourself did not always make the best decisions. Now, years later, you are older, wiser, far more responsible and not as wild, but your record still shows that you have been convicted of a crime...
That fact does not make you a bad person and it should not have to follow you for the rest of your life! If you have successfully completed probation and kept out of trouble, you may be able to have the crime expunged from your record. Even if you are still on probation, you may be able to have your probation terminated early and have your record expunged.
What Does it Mean to Have Your Record Expunged?
An expungement in California state court generally refers to the process of withdrawing a guilty plea or verdict and then having the case dismissed. This criminal record clearing removes the crime from your record and permits you to deny having been convicted of a crime in most all circumstances.
Expungement cases can be complex so it is important to contact a lawyer who knows how to navigate the paperwork and procedure; from filing the initial motion to representing your cause at a hearing with the court where you were convicted of the crime.
Many people don't even know that they have the option of having their records cleaned up. There are clearly some advantages to doing so. Perhaps most importantly, you get to answer "no" on job applications, and anywhere else the issue may arise, to questions about whether you have been convicted of a crime.
For more information on cleaning up your record, contact David J. Givot online or call (310) 699-0070.
Saturday, April 2, 2011
You Are NOT Going to Outsmart the Police!
There's NO SUCH THING AS "OFF THE RECORD!"
I have told you not to talk to police. I shared a Law Professor's lecture to illustrate my point.
Now, I give you a lecture from a Police Officer who will tell you that I AM RIGHT!
If you have any more questions, call Attorney David Givot at (888)293-0396.
Once Again, You Have the RIGHT to Remain Silent!
I have been telling you for years that you have an absolute right to remain silent.
I have been telling you that NOTHING good can come from you "answering a few questions." Nevertheless, I get calls from potential clients who say, "...the police just came by to ask some questions and I answered...next thing I know, they arrested me."
Your right to remain silent does not imply guilt, it does not look suspicious, and even if it does, what do you care? You are NEVER going to talk your way out of criminal charges, but you can always talk your way into them.
No matter what you think, when the police are asking questions, they are smarter than you; if only by virtue of the fact that they know what they are looking for and you have no idea.
It doesn't matter if it is a simple traffic stop or you are stopped walking down the road or if they come knocking on your door: DO NOT ANSWER QUESTIONS! You can tell them your real name and you can show the real identification. Other than that, you have an ABSOLUTE RIGHT to remain silent and you have an ABSOLUTE RIGHT to have an attorney present during questioning.
How do you do it? It's easy, just 10 words:
"I will not answer any questions without my attorney present."
But you don't have to take my word for it. This Law Professor makes it pretty clear.
If you have any more questions, call Attorney David Givot at (888)293-0396.
Thursday, March 31, 2011
Ex-Pa. chief allegedly made lewd remark during EMS training
Chief had been suspended since Sept. 16, a day after he allegedly fondled a woman who had gone to the fire station to apply for a job
WESTMORELAND COUNTY, Pa. — Jeannette's former fire chief was charged with harassment for allegedly making a lewd remark to a woman during a training exercise at Jeannette Emergency Medical Services.
Westmoreland County Detectives filed the misdemeanor charge on Monday against Randy Dubich. According to the criminal complaint, Dubich was at the EMS garage for a training session Feb. 19 when he made the lewd remark. He then said, "What do you think about that?"
The incident allegedly took place just one week after Dubich returned to his job as chief. He had been suspended since Sept. 16, a day after he allegedly fondled a woman who had gone to the fire station to apply for a job.
On Nov. 12, he was charged with a misdemeanor count of indecent assault in connection with that incident. Dubich was first suspended with pay, but the day the charges were filed, his status was changed to suspension without pay.
Read Paul Paterra's whole story: HERE
Law Office of David J. Givot
Facebook murder picture horror inspires bill
ALBANY -- Two years after a medical responder posted a Facebook photo of a murdered Staten Island woman, state lawmakers are pushing to beef up the penalties for such acts.
A group of Staten Island legislators, including the members of the Senate's Independent Democratic Conference, introduced bills in the Senate and Assembly on Wednesday that would make it a felony for an on-duty public servant to take a picture or video of a crime scene for private use, such as Facebook distribution.
Under current state law, the maximum penalty is a misdemeanor.
Read More: Here
Law Office of David J. Givot
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