Sacramento Criminal Defense Lawyer Blog

Though the terms theft and burglary are sometimes used interchangeably in everyday conversation, they are distinct crimes as defined by the California Penal Code. Both are serious crimes that come with the potential for severe penalties.

California Penal Code section 484 defines theft as a taking of property. Theft crimes are divided into two categories: petty theft and grand theft.

• Petty theft is charged when the value of the property is $400 or less. Petty thefts can be charged as infractions or misdemeanors depending on the value of the property and the defendant's prior criminal record. Penalties for a conviction of petty theft include fines up to $1000, a jail sentence of up to six month, restitution, counseling, work project, and/or probation.
• Grand theft is charged when the value of the property is greater than $400. Grand thefts can be charged as either misdemeanors or felonies depending on the defendant's prior criminal record and the circumstances of the crime. Penalties for grand theft include substantial fines, jail time up to one year or prison time of longer duration, restitution, counseling, work project, and/or probation.

California Penal Code section 459 defines burglary as entering a building with the intention to commit a theft, or any felony. Burglaries are divided into two categories: first degree and second degree.

• First degree burglary is charged when someone enters an "inhabited" building, such as a house, apartment, or trailer. Conviction of first degree burglary carries a prison term of two, four, or six years.
• Second degree burglary is charged in all other instances, like when the "structure" is a store, warehouse, or vehicle. Second degree burglaries are wobblers, which means that the district attorney's office can charge them as either misdemeanors or felonies. Conviction of second degree misdemeanor burglary can result in a jail term of less than a year. Conviction of second degree felony burglary has the potential of up to three years in prison.

The key thing that distinguishes theft from burglary is that theft means that property was actually taken. Burglary, on the other, is concerned with entering a building with the intent to commit another crime. That means that burglary can be charged when someone goes into a house and steals money or actual property. It can also be charged when someone goes into a house and commits a sexual assault or other felony. And importantly, it can also be charged when no other crime is committed, as long as the defendant is believed to have had the intention to commit a theft or other felonious act. That means that a person could get the idea to steal something, enter a house, leave empty-handed after having second thoughts, and still be charged with burglary.

Obviously, the complicated nature of the Penal Codes pertaining to theft and burglary mean that representation by an experienced criminal defense lawyer is essential if you or someone you know is facing charges.

When a person is arrested, it is not a certainty that criminal charges will be filed. The police department of each city (and at the county level the sheriff's department) has the authority to investigate crimes and make arrests. But it is the district attorney's office in each county that actually files criminal charges. This placement of authority in separate agencies serves to protect us against abuses that can arise when government power is concentrated.

In certain cases, letters of reference can be useful in attempting to persuade the district attorney to not press charges, or to dismiss charges that have already been filed. The circumstances that would merit these sorts of letters are varied, but an experienced criminal defense attorney will be able to advise you.

To illustrate, here's an example similar to cases we've defended. One night a man in his early twenties - call him Michael - takes his buddies out joyriding in his car. Michael pulls up to a liquor store and waits outside while his friends go inside. All of a sudden he sees them running from the store with bottles of alcohol that they've just stolen. As Michael's friends climb in the car, he panics and drives away at high speed. The entire incident is recorded by a security camera, however, and within a few days everyone involved is arrested.

Two years go by without the district attorney filing any charges. But then Michael receives notification that he is being charged with theft, conspiracy, and aiding and abetting.

This is where letters of reference can be helpful.

Continue reading "Letters of Reference Requesting Dismissal of Charges" »

California Penal Code section 1203.4 provides people who were convicted of certain crimes the opportunity to have a 'conviction' replaced with a 'dismissal' on their criminal record. Expungement, as the process is commonly called, is possible after fulfillment of all the terms of sentencing, including payment of fines and restitution and completion of probation. (Click here to read a detailed description of the expungement process.)

If you're requesting an expungement, your defense attorney may ask for letters of reference to help strengthen your case. Since an expungement substitutes a dismissal in place of a conviction, the judge reviewing the expungement petition needs evidence that you have been rehabilitated and have turned away from criminal activity. Letters of reference from family, friends, and even co-workers should attest to your good character and positive influence in the community.

It is very important that reference letters be authentic. They should never be written by the person seeking the expungement or copied from websites. Only ask someone to write a letter if you're certain that he/she will have good things to say about you.

A good reference letter should have these elements:

Format

• Typed and dated
• Addressed to the judge handling the expungement petition
• Written in direct, succinct, and grammatically correct language

Information

• The reference's name, address, age, occupation, and relationship to the person requesting the expungement
• Specific examples of the petitioner's good character and community contributions
• Specific ways that the petitioner has matured since being convicted

Good letters of reference can be extremely beneficial to an expungement petition. Contact an experienced criminal defense attorney for more information.

In our April 8 post, we went over California law as it relates to petty theft. Today we'll review grand theft.

California Penal Codes 484 to 490 specify the elements of, and penalties for, both petty theft and grand theft. If the value of the property stolen is greater than $400, grand theft is charged.

Some exceptions to this general rule exist, however. One concerns vehicles. All instances of auto theft are charged as grand theft. Another exception concerns livestock and agriculture. A person who steals fruits, vegetables, nuts, fowl, fish, cattle, or numerous other agricultural and livestock items will be charged with grand theft if the value of those items exceeds merely $250 - in contrast to the $400 threshold for most other goods.

In general, grand theft is punishable by up to one year in county jail or state prison, substantial fines, work project, restitution, counseling, and probation. But again there is an exception. If the grand theft involves use of a firearm, then the prison term is 16 months to 3 years.

Grand theft is a 'wobbler,' meaning that it can be charged as either a misdemeanor or a felony depending on the prior record of the defendant and the particulars of the crime. Because of this variability, it's critically important to be represented by an experienced criminal lawyer to help you present the best possible case.

The Folsom Police Department announced that it will conduct a DUI checkpoint beginning at 7:00 PM on Friday, April 9, and ending at 3:00 AM on Saturday, April 10. The location was not disclosed in the department's press release.

Funding for the checkpoint comes from the National Highway Traffic Safety Administration and the California Office of Traffic Safety. The checkpoint will be staffed by Folsom Police Department officers, with assistance from Citizens Assisting Public Safety volunteers and a Community Service Officer.

As we always advise when providing information about sobriety checkpoints, take the steps necessary to keep yourself and others safe if you plan on consuming alcohol. Choose a designated driver before leaving your house or apartment, put taxi phone numbers into the address book of your mobile phone, or even hire a driver for the evening.

Finally, keep in mind that arrest for DUID (driving under the influence of drugs) is possible after use of legal medications if those substances impair your ability to safely operate a vehicle. Be aware of the effects that medications have on you and ask a family member or friend to drive for you if necessary.

The laws in California concerning theft distinguish between petty theft and grand theft. The point we want to emphasize today is that substantial discretion is given to prosecutors to charge petty thefts as either infractions or misdemeanors, and grand thefts as either misdemeanors or felonies. Since the penalties vary substantially among infractions, misdemeanors, and felonies, it's crucial to obtain quality legal representation to build the best possible defense. In today's post we'll review petty theft, while in a post next week we'll go over grand theft.

California Penal Code Sections 484 to 490 lay out the guidelines and penalties for theft. Petty theft - often called shoplifting - is defined as a taking of property worth less than or equal to $400. Most first time petty theft offenses are charged as misdemeanors. Penalties can include a combination of jail time up to six months, fines up to $1000, restitution, work project, counseling, and probation.

As mentioned above, however, California law gives prosecutors the discretion to reduce a petty theft charge to an infraction or increase it to a felony, depending on the circumstances of the case.

• A petty theft can be charged as an infraction if the value of the stolen property is $50 or less and the defendant has no prior theft convictions. From the defendant's point of view, an infraction is preferable to a misdemeanor since it carries a fine of no more than $250. It's like getting a traffic ticket or littering citation.
• Prosecutors can also charge any second, third, or subsequent petty theft as a felony, which means the possibility of substantially higher penalties.

Because California law gives prosecutors so much discretion in petty theft cases, it's crucial to seek the advice of a quality defense lawyer if you're facing criminal charges.

Earlier this week the U.S. Supreme Court ruled that criminal defense lawyers are obligated to warn immigrant clients of any deportation risks they face as a result of agreeing to a plea bargain.

The case concerns Jose Padilla, who in 2001 was arrested in Kentucky with 1000 pounds of marijuana in his vehicle. Padilla was born in Honduras but had lived in the United States for 40 years and was a legal permanent resident, even serving in the U.S. Army in Vietnam.

Padilla's attorney at the time incorrectly told him that his guilty plea would not result in deportation. But as soon as Padilla finished serving his prison sentence, the federal government moved to return him to Honduras because his immigrant status meant that conviction of the felony would be grounds for deportation. Padilla appealed, arguing that his Sixth Amendment right to counsel had been violated since his attorney had improperly advised him.

The Court agreed with Padilla that his attorney's incorrect advice led him to enter a guilty plea that was not in his interests. But the Court went further. John Paul Stevens wrote in his majority opinion that defense attorneys must explain deportation risks to their immigrant clients. "The severity of deportation -- the equivalent of banishment or exile -- only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation."

Whatever your citizenship status, if you're faced with criminal charges, you need a quality defense attorney who knows the law.

Padilla v. Kentucky (2010)
"Court Requires Warning About Deportation Risk," New York Times, March 31, 2010