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Assault & Battery Charges are Taken Serious in California

Assault and battery charges are taken serious in California. California Penal Code 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. A battery is defined under California Penal Code 242 as “any willful and unlawful use of force or violence upon the person of another”. Incidences of assault and battery typically occur during a physical fight or a verbal argument that turns into a physical altercation. Assault can also be construed even if you physically throw an object at someone regardless if they are injured or not, and you could still be arrested in California. A simple assault misdemeanor carries penalties ranging from six months to a year in the county jail and a fine of $1,000 to $2,000. A simple battery can be charged as a misdemeanor or a felony and carries penalties ranging from six months in the county jail to three years in state prison and fines of $2,000 up to $10,000.

Assault with a Deadly Weapon Other Than a Firearm (Penal Code 245)

An assault with a deadly weapon also known as aggravated assault upon another person other than with a firearm with the intent to produce great bodily harm is a felony in California with penalties of up to four years in state prison and fines up to $10,000. A deadly weapon can be any object that is not part of your body such as a knife, a pen, rocks or even your car.

Assault with a Firearm (Penal Code 244)

Only possession of a firearm during the assault is enough cause to increase the penalties for this crime to a $10,000 fine and a 4-year prison sentence.

Case Example:

British actor and comedian Russell Brand met with Los Angeles prosecutors on Wednesday November 17, 2010 regarding his arrest pertaining to an altercation with a photographer at LAX Airport in September 2010. Brand and his wife, singer Katy Perry, were entering Delta Airlines terminal when they were swarmed by paparazzi.  Airport video cameras caught Brand swatting at the photographer and hitting his camera. He was facing the possibility of misdemeanor simple battery charges. The City said a prosecutor will also meet with the photographer this week. However, a spokesperson for the City said it was unlikely that they would be filing charges against Brand. Brand was unknown in the United States until 2008 when he hosted the MTV Video Music Awards. He has become famous here since his recent marriage to Katy Perry. He has also starred in the film Get Him to the Greek”. Perry is known for her two hit songs “I Kissed a Girl” and “California Girls”.
This is not the first time that celebrities have gotten into skirmishes at LAX with the paparazzi.  City prosecutors charged Kanye West with misdemeanor battery, vandalism and grand theft for breaking a photographer’s flash during an incident at the airport in September 2008. The case was later dismissed after the rapper settled a civil suit and agreed to attend anger management classes.Mike Tyson was also charged in November 2009 for allegedly hitting a photographer at LAX. Prosecutors declined to charge the former boxer because they said they found insufficient evidence.

If you are arrested for assault and battery charges in California, you should hire a California criminal defense attorney to defend you. The attorney may be able to get the charges reduced or dismissed to menacing, mistaken identity, self-defense, defense of property or defense of others, no credible threat, false accusations, the victim consented to the assault, or there may be insufficient evidence to charge you.

Know How a California Criminal Lawyer Can Help You

California Penal Code Section 503 defines the crime of embezzlement as the “fraudulent appropriation of property by a person to whom it has been entrusted”. Basically this means you have taken property that someone has entrusted you with and used it for your own personal benefit. Embezzlement crimes are also referred to as employee theft or employee fraud. Depending on the value of the money or goods taken, you can be charged with either a petty theft crime or a grand theft crime.
Penalties

·    Penalties for theft crimes in California are set forth under California Penal Code Sections  487 and 503-515 as follows:
·    Theft crimes involving values less than $950 are considered petty theft crimes and carry up to six months jail time and a $1,000 fine.
·    Theft crimes involving values over $950 are considered grand theft crimes and penalties range from up to one year jail time and a maximum $1,000 fine to 16 months, or two or three years jail time and a maximum $10,000. When property taken belongs to a state, county or city government, the theft is a felony crime.

Case Example

On October 7, 2010, Susan Elaine Nash, 43, of Redding, CA was arrested at her home on the 2700 block of Alfreda Way at 10:35 a.m. on suspicion of embezzling approximately $27,000 from her former employer, OES Sheet Metal between December 2009 and June 2010. The owner reported Ms. Nash’s possible embezzlement to police in June 2010. Ms. Nash worked as the bookkeeper at OES Sheet Metal. Redding Police Department Financial Crimes Unit alleges that Nash wrote 37 separate checks made out to her and then cashed them at the local market without the business owner’s knowledge. Police reported that she has confessed to stealing the funds. She has been booked into the Shasta County jail instead of posting a $10,000 bail.
Defenses

If you are charged with embezzlement, you should hire a California criminal defense attorney to defend you. The attorney may be able to fight the crime by questioning evidence leading to conclusions that you may have committed the crime and claiming you are a victim and that  someone is trying to blame you for the crime. You may also be able to work out a plea agreement for restitution or agreeing to return the funds to the party you took them from in exchange for them agreeing to drop the charges against you or getting the charges reduced to a lesser crime. For crimes involving $50 or less, the charges may be reduced to an infraction and a $250 fine.

Always Appoint a Qualified California Criminal Attorney for Your Legal Needs

An arrest for domestic abuse in California is a serious matter. It could affect your chances of obtaining employment, prevent you from purchasing a fire arm and you could face jail time, fines, attendance of a batter’s counseling program and/or a drug or alcohol program, paying restitution payments and probation depending on whether you are charged with a misdemeanor or a felony. Under California Penal Code Statutes 13700, an act of domestic abuse is considered abusing someone you have a “domestic” relationship, which includes the following persons:

·    Spouse or former spouse or cohabitant
·    Roommate or former roommate
·    Person you may be dating or previously dated
·    Parent of your child
·    Family members including parents, siblings, aunts and uncles, nieces and nephews and first cousins

The definition of abuse is considered the intentional or reckless causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable fear of imminent serious bodily injury. Many times, victims take out a restraining order against their abuser. The restraining order may be enforced by California police, who are authorized to arrest violators of domestic restraining orders under California Penal Code Section 836. The district attorney’s office determines whether the charges to be filed will be a misdemeanor domestic abuse or a felony domestic abuse based upon the circumstances of the case. If the victim suffered minor injuries or threats, then the charges will most likely be a misdemeanor charge. However, if the victim suffered serious injuries, felony charges will be filed. It is not unusual to charge both parties if there are no witnesses and both claim abuse occurred or the police find cuts and bruises on both parties.

Penalties

You could face the following penalties if you are arrested for domestic abuse in California:
·    For a misdemeanor domestic abuse charge, you face fines and up to six months jail time as well as attendance of a domestic violence counseling program and 40 hours of community service and probation.
·    For a felony domestic abuse charge, you face fines and jail time ranging from three months to three years, as well as attendance of a domestic violence counseling class and 40 hours community service and probation.
In addition, if drugs or alcohol are involved, you may be required to attend an AA or NA program under California Penal Code Section 1203.097 and pay restitution to the victim and payments to a women’s shelter in the maximum sum of $5,000.

Help for Victims

The Governor signed a budget package on October 8, 2010, which included $20.4 million dollars to be allocated for statewide domestic violence shelter services that will be administered through the California Emergency Management Agency (CalEMA). This action now returns critical funding that was eliminated under a line item veto in July 2009.

Case Example

Former Chargers star linebacker Junior Seau was arrested on suspicion of assaulting his 25 year old live in girlfriend during an argument, which occurred at their Oceanside beachfront home on Sunday evening October 17, 2010. Oceanside police said the woman suffered minor injuries and did not require medical attention. Seau was released on bail from Vista jail on Monday. He was involved in an accident shortly thereafter as his Cadillac Escalade went over 30 ft. of boulders on an oceanfront cliff in Carlsbad. He was treated for minor injuries caused by the near fatal crash. He told police he fell asleep as he was heading south on Carlsbad Blvd. around 8:42 a.m. Monday. He awoke as the SUV started going over the side. Despite rumors that the accident was an attempted suicide involving the use of drugs or alcohol, Carlsbad police said they did not believe Seau was attempting suicide, and there were no signs of any type of intoxication. The results of a blood test that Seau agreed to take at the hospital will be available in six weeks. The domestic violence case is expected to be sent to the Oceanside District Attorney’s office on Friday according to Oceanside police. A tentative arraignment has been scheduled for Monday, October 25, 2010 should prosecutors decide to charge Seau.

If you are arrested in California for domestic abuse, you should hire a California criminal defense attorney. The attorney may be able to get the charges reduced or dismissed on the basis of self-defense or a simple misunderstanding or by getting the parties to enter into a civil restraint agreement agreeing to leave each other alone.

California Sex Offender Registration Laws and Changes in Conviction Penalties

California sex offender laws are strict. If you have been convicted of a misdemeanor or felony sex offense crime in California, besides serving jail time or completing probation, you must also register as a sex offender. California Penal Code Section 290(a)(2)(A)-(E) requires all persons convicted of sex offenses in California to register for life as a sex offender with the local police station or sheriff’s department in the city or unincorporated area where they reside. The court may order a person to register as a sex offender even if their offense was not a sexually motivated crime.
Most common sex offenses requiring registration under Section 290 include the following acts:
·    Rape under Penal Code Section 261
·    Sexual battery under Penal Code Section 243.4
·    Lewd acts regarding minors under Penal Code Section 288
·    Contributing to the delinquency of a minor under Penal Code 272
·    Child pornography under Penal Code 311
·    Pandering a minor under Penal Codes 266h and 266i
·    Aggravated and continuous sexual assault of a minor under Penal Codes 269 and 288.5
·    Incest under Penal Code 285
·    Forced acts regarding oral copulation under Penal Code 288a
·    Sodomy under Penal Code 286
·    Acts of penetration with a foreign object under Penal Code 289
·    Indecent exposure under Penal Code 314

The law states that the person must register within five days from release of custody or probation or changing their residence within or outside the city or county or their name. Transient and homeless people must continue to register every 30 days. A sex offender who attends or is living at a campus of a California state or community college or other institution of higher learning is required to register both with the campus police and the local law enforcement agency in their jurisdiction. Students or employees who reside in another state and are convicted sex offenders that are working in California or attending a California school must also register with the local law enforcement agency and the school.

All registrants must update their information every year within five working days of their birthday, and sexually violent predators must update their records not less than every 90 days. The names of juvenile registrants are not publicly disclosed on the Internet list. However, law enforcement may use their own discretion to notify the public if they believe that a juvenile sex offender in their area poses a threat to the public. Convicted felony sex offenders who willfully do not comply with the registration law can be found guilty of a felony. Convicted misdemeanor sex offenders who willfully do not comply with the registration law can be found guilty of a misdemeanor for the first violation and a felony for subsequent violations.

Megan’s Law

Megan’s Law, which was signed into effect on in California by the governor on August 24, 2004, makes it possible for the California list of all sex offenders to be published on the Internet so that the public may access the information. Prior to the enactment of the Megan’s Law, the information could only be obtained by the public by visiting their local law enforcement agency to view the information or by calling a toll free 900 number. All states have some sort of Megan’s law. The intention of the law is to keep the public informed of the whereabouts of offenders that may pose a threat to them and not for harassing or committing crimes against registered sex offenders.

Dismissal of Offense After Probation and Certificate of Rehabilitation

Under California Penal Code section 1203.4, convicted sex offenders who complete their probation may apply to have their offense dismissed. However, they still must register for life. Only persons whose sex offenses are nondisclosable to the public are eligible to apply for a certificate of rehabilitation from registering as a sex offenders after 7-10 years after their release from custody, parole or probation, whichever occurs first. All other persons must obtain a pardon from the governor.

Chelsea’s Law

Thursday September 9, 2010, Governor Arnold Schwarzenegger signed into law Chelsea’s Law which allows life without parole sentences for adult sexual predators who kidnap, drug, bind, torture or use a weapon while committing a sex crime against a child. Life terms could be ordered for first-time and repeat offenders. The new law also increases other penalties for child molesters, including the requirement of lifetime parole with GPS tracking for offenders convicted of forcible sex crimes against children under 14. The new law was named after 17 year old Chelsea King, who was killed by 31 year old convicted child molester John Gardner. Gardner had been previously convicted of molesting a 13 year old neighbor in 2000 and served five years out of a six year sentence. Gardner was sentenced to life in prison in May 2010 after pleading guilty to the murder of Chelsea King and a 14 year old girl Amber Dubois. The new law will protect children against such crimes by keeping sex offenders such as Gardner in jail for a longer period of time.

State law makers and local police are also trying to keep convicted sex offenders from registering on social networks like MySpace and Facebook, where they look for victims. AB 2208 was introduced in February 2010, which if passed and enacted into law, would make it illegal for convicted sex offenders who are required to register under California Penal Code Section 290 to use social networking sites such as Facebook or MySpace by making it a misdemeanor. Facebook already has The P.O.M. Offender Locator tool on their site which allows users to search for sex offenders by putting in their address and providing a list of offenders that the user can click for more information.

If you convicted of certain sex offense crimes, you are required to register for life as a sex offender under California Penal Code Section 290, even after serving your time or probation. It is crucial that you hire an experienced California criminal law sex offense attorney who can challenge the California sex offender registration laws by getting the charges dismissed after probation and/or assist you with obtaining a Certificate of Rehabilitation so you no longer have to register as a sex offender. If you are charged with a misdemeanor or felony sex offense in California, the attorney can defend you by being able to get your pleas of guilty or no contest withdrawn or get your sex offense crime dismissed, especially in cases of statutory rape or sex with a minor under Penal Code Section 261.5. Many times these accusations are false, and the sex is consensual.

Rapper T.I. Arrested in Hollywood on Methamphetamines Suspicion

California has strict laws regarding driving under the influence of alcohol and/or drugs (DUI laws). You may be charged with either a misdemeanor DUI under Vehicle Code Section 23152 or a felony under Vehicle Code Section 23153 if you cause an accident and injure someone. If you cause the death of another person while driving under the influence, you could be charged in California with the crime of vehicular manslaughter under penal Code Sections 191.5 and 192. DUI penalties are complex and may be enhanced depending on your prior driving convictions, whether a child under the age of 14 year was in the car at the time of the violation, whether you were speeding, if your BAC was over .08% and if you refused to take a chemical test.

California has increased their DUI laws making it tougher for even first offense DUI convictions.  July 1, 2010, AB 91, a test pilot program went into effect and is being enforced in Los Angeles, Sacramento, Alameda and Tulare counties only. Under the pilot program, any driver who has been convicted of a DUI crime, including first offenders, must install an Ignition Interlock Device (IID) in their car at their own expense to obtain a restricted driver’s license.

California DUI Drivers License Suspension and Penalties

If you are a DUI first offender, your driver’s license could be suspended immediately for four months if you have a BAC over .08% at the time of your arrest or it may be suspended for one year if you refuse to take a chemical test. Drivers under 21 with a BAC of .01% or more will have their license automatically suspended for one year. Second offenses for drivers with BAC over .08% will get you a one year suspension and a two year suspension if you refuse to take a chemical test. If convicted of a DUI offense, your license could be revoked or suspended depending on your BAC levels, whether you caused an accident which resulted in the injury or death of another person or whether you have any prior DUI convictions. Out of state drivers will be given a notice of suspension if their BAC is over .08% or over .01% for drivers under 21, which means they cannot drive in the State of California after 30 days.
You face jail sentences from 96 hours to three years and fines up to $1,600, completion of a driving under the influence program, installation of an IID in your vehicle and having to obtain SR22 (California Proof of Insurance Certificate) car insurance.  Penalties are enhanced for second and third or more convictions. A conviction of three prior DUI’s with a BAC of .08% within the previous 10 years is considered a felony.
Example Case
Rapper  and hip-hop  artist T.I., whose legal name is Clifford Harris, Jr., and his wife Tameka “Tiny” Cottle were arrested in Hollywood Wednesday evening September 1, 2010, on suspicion of possession of methamphetamines after police allegedly smelled marijuana smoke coming from their car during a routine traffic stop in West Hollywood for making an illegal U turn on Sunset Boulevard. T.I. was booked for possession of a controlled substance.  The couple posted $10,000 bail each and were released the next morning.

T.I. is currently on probation for federal weapons charges. He served a sentence of seven months in federal prison in Arkansas and three months in a halfway house in George for his federal weapons conviction. His Atlanta probation officer has asked him to return to his hometown of Atlanta according to one of T.I’s. attorneys. His probation officer has the choice of modifying his probation terms requiring him to take additional drug counseling classes or drug testing on a more frequent basis, or he could ask the judge to revoke T.I.’s probation, which ends in 2013. This could mean additional prison time for the rapper.  The Atlanta U.S. Attorney’s office is in the process of reviewing the facts of the Hollywood arrest to determine what happened before making any recommendations. U.S. District Judge Charles Pannell, Jr., the presiding judge in the original weapons case, has the authority to make any final decision regarding T.I.’s probation violation.
The rapper claims he has turned his life around. He has given several speeches about the dangers of drugs, guns and has received the support of former UN ambassador Andrew Young. Young has voiced skepticism about why the rapper was pulled over in the first place.
An arrest for a DUI offense in California is serious. You should hire a California criminal defense attorney immediately. The attorney will investigate whether the police had probable cause to stop and arrest you in the first place or whether there is sufficient evidence to argue that the search and seizure of you or your car was illegal to attempt to get the charges dropped and the case dismissed. The attorney will also review your arrest record and interview you to determine if your constitutional rights were violated if the police failed to properly give you your Miranda warning before being questioned. An experienced criminal law attorney may be able to get your charges reduced to a lesser offense such as speeding or negligence in the case of vehicular manslaughter, or get you into a drug and alcohol counseling program which would give you a suspended sentence or probation.

Montebello California Jury Acquits 17-yr old of Murder

California Penal Code 187 defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought”. You face serious jail time and penalties if convicted of first degree murder, capital murder with special circumstances or second degree murder in California. Penalties for murder in California range from 15 years in state prison to life or life without parole or even the death penalty. If the murder was a hate crime, you face life in prison without the possibility of parole.

First Degree Murder Conviction

To be convicted of a first degree murder in California, you must have:
·    Used a destructive or explosive device
·    Waited for a victim and inflicted torture on them
·    Killed someone in a willful, deliberate and pre-meditated manner
·    Killed someone while committing a felony or attempting to commit a felony under the felony murder rule

You face 15 years to life or life without parole in state prison.

Capital Murder with Special Circumstances Conviction

To be convicted of capital murder in the first degree with special circumstances, you must have:
·    Killed someone for financial gain
·    Killed multiple victims
·    Killed a police officer, firefighter, prosecutor, judge, juror or elected official
·    Killed a witness to prevent them from testifying
·    Killed someone while attempting to commit or committing a felony which subject you to the first degree felony murder rule
·    Killing someone because of their race, color, religion, nationality or country of origin which is considered a hate crime
·    Killing someone by discharging a firearm from a motor vehicle (drive-by-shooting
·    Murdering for benefit of a street gang (186.22 Penal Code)

You face 15 years to life, life without parole or the death penalty.

Second Degree Murder Conviction

To be convicted of a second degree murder charge in California, you must have committed any murder that does not fall under the category of first degree murder or capital murder with special circumstances. Examples of second degree murder are when you discharge a weapon into a crowd and kill someone, or you get into an argument or kill someone while you are intoxicated with alcohol or under the influence of drugs.  Second degree murders are considered willful, but without pre-meditation or malice.

You can face up to a 15 year to life sentence and life without possibility of parole if you served time previous for a murder conviction. Sentences for murder can be increased to 20 years to life if you shoot a firearm from a vehicle with the intent of causing serious injury, or 25 to life if a peace offer is involved and life without the possibility of parole if you intended to kill a peace officer or to cause great bodily harm to a peace officer or used a deadly weapon or firearm in killing the officer.  You may also have to pay a fine of $10,000 and also have to pay victim restitution. Under the California three strikes law, if you are convicted of three felonies, there is a mandatory prison sentence of at least 25 year to life.

Case example:

On June 11, 2010, a Montebello jury acquitted 17 year old Angel Sosa of two murder charges, which included a special circumstance of multiple murders and assault with a firearm. Although the boy was tried as an adult, he was not facing the death penalty because he was under the age of 18 at the time of the murders of 44 year old Juan Garcia and his 12 year old son Albert at a high school graduation party on June 21, 2008.  Sosa could have faced life in prison if convicted of the first degree with special circumstances or second degree murder charges.

The defense attorney, Jeri Polen, argued that dozens of witnesses were unable to identify Sosa as the shooter and witnesses identified someone else.  The DA, Michele Hanisee, argued that a witness identified Sosa as the gunman and saw him fire a 9 mm from behind a van into a crowd of people beyond the backyard fence of a home located at the 100 block of East Madison Avenue, where the party occurred.  The victims who had nothing to do with an earlier confrontation that had taken place at the home died at Beverly Hospital in Montebello.  Sosa’s family described the defendant as “the best kid you could want to know and a “pretty good football player”.  He plans on returning to high school in the fall.

A murder charge in California is a very serious crime. You should hire a skilled and experienced California criminal defense attorney to represent you. The attorney can defend you by raising doubt and using other defenses such as self- defense, defense of others, accidental killing, insanity, false and coerced confessions, illegal search and seizure or mistaken identity to get the charges reduced or dismissed.

California Property Crimes Down in 2009

The California Attorney General’s Office released their findings regarding property crimes in a Preliminary Report covering January 2009 through December 2009, reporting that property crimes were down 11% in California during the year 2009 compared to 2008. There were 413,661 property crimes reported in 2008 and 367,745 property crimes reported in 2009. Crimes categorized as property crimes and included in the report were burglary, automobile theft and larceny- theft crimes of over $400.00. The statistics were compiled from 87 agencies consisting of police, sheriff and cities that contracted for their police because they did not have their own police force with populations over 100,000.

Broken down by category:
• Burglary decreased 5% from 147,101 in 2008 to 139,703 in 2009.
• Motor vehicle theft decreased 17.4% from 126,739 in 2008 to 104,742 in 2009.
• Larceny crimes over $400.00 decreased 11.8% from 139,821 in 2008 to 123,300 in 2009.

Even with the high unemployment California is facing, when interviewed earlier in the year, before he resigned as Los Angeles Police Chief, Chief Bratton was quoted as saying the reason crime is down in Los Angeles is that “cops matter.” In fact, during his six years as Los Angeles Police Chief, crime declined in Los Angeles. Crime experts contribute the LAPD’s success to their well organized efforts on tracking crime trends and sending police to problem areas as well as the LAPD’s continuous programs working with religious groups, outside agencies, the community and cracking down on gangs. Other explanations for the decline in California crime rates during 2009 are that more people are at home because they have lost their jobs giving criminals less opportunity to commit home burglaries, auto thefts and larceny. While others explain the crime decline as the population is aging and older persons commit fewer crimes. Other criminologists see the economy as playing a major force in the rise in crime rates as the demand for stolen goods increase because more people will be looking for cheaper prices on the black market and at local street markets.

California Penal Code 487- California Grand Theft Law
California Penal Code 487defines burglary as “entering a home, shop, etc. with the intent to steal.” So if you enter a home or business with the premeditated intent to commit a burglary and you carried out the plan, you could be convicted of grand theft and burglary. However, if the property you took was under $950.00, then you may only be convicted of petty theft. If you receive stolen property knowing that it was stolen, you could be convicted of grand theft misdemeanor or a felony depending on circumstances of the case and your criminal history record. If you use a firearm to commit a burglary or petty theft, the crime is considered a grand theft felony and a strike on your record. Convictions for grand theft misdemeanors carry a sentence of up to one year in the county jail. A grand theft felony conviction carries a sentence of 16 months, two years or three years in a California State Prison. There are additional consecutive sentences of one year if the property you took is worth more than $65,000, two years if the property was worth more than $200,000, three years if the property was worth more than $1,300,000 and four years if the property was worth more than $3,200,000. A conviction for property crimes should be taken seriously. You should consult a criminal defense attorney upon your arrest to defend you.

Statutory Rape Sorting Out the California Unlawful Sexual Intercourse Law

By Vince Imhoff, Esq., and Dan Rhoads

Age Aint Nothing but a Number: The title of Aaliyahs first album was a not-so-subtle justification of her relationship with R. Kelly. When she was 15 and he was 25, the two were married secretly; but her parents annulled the marriage when they found out about it. Years later, R. Kelly was arrested when a videotape that allegedly featured a sexual encounter between him and a young teenage girl surfaced. This arrest came after Kelly settled a suit with a woman who claimed that Kelly impregnated her when she was 16.

Like R. Kelly, Roman Polanski has enjoyed celebrity long after being charged for statutory rape. Polanksi plied a 13-year-old girl with alcohol and Quaaludes before having sex with her at Jack Nicholsons house. Out on bail, Polanski fled to France and has never returned to the United States to face his sentence.

Statutory Rape Penal Code, Section 261.5(a)

Because Polanskis victim was under 14, his crime against her was actually lewd or lascivious acts committed with a child. In California statutory rape, or unlawful sexual intercourse, is: an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. . . . [A] minor is a person under the age of 18 years. Cal. Pen. Code 261.5(a).

Taking the statute literally, whenever unmarried minors consent to sex, they would both be guilty. However, [f]or there to be a violation of [ 261.5], one minor must be denominated a perpetrator and the other a victim. The fact that a minor may be a victim does not ipso facto exclude a minor from being charged as a perpetrator. In re T.A.J., 62 Cal. App. 4th 1350, 1364 (1998).

The question that this reasoning raises is: when both parties are consenting minors, which one is the perpetrator?

Due to the reasons underlying the law of statutory rape, the male is at greater risk to be dubbed the perpetrator. Until 1993, the statutory rape laws singled out women as the victims, making men the de facto perpetrators in all cases of underage heterosexual intercourse.

Like most states, California has made its law gender-neutral. Now, although boys who are alleged victims are not viewed the same way as girls who are victims, explains Mike Sinacore, under the law there is no distinction (CBS News). Sinacore is the prosecutor in the case against Debra Lafave, a 23-year-old schoolteacher in Florida who had sex with a 15-year-old male student.

Crimes and Punishments for Statutory Rape Convictions

Where the perpetrator is no more than 3 years older or younger than the victim, statutory rape is a misdemeanor. Cal. Pen. Code 261.5(b). When the minor is more than 3 years younger than the perpetrator, the offense is a wobbler, which means that it can be charged as either a misdemeanor or a felony.

When the perpetrator is 21 or older and the minor is younger than 16, a misdemeanor charge can be penalized by 1 year in county jail. 261.5(d). A felony charge for such an offense carries a punishment of 2, 3, or 4 years in prison. Id.

In cases where the age difference is more than 3 years, but either the perpetrator is under 21 or the minor is over 16, a felony charge can be punished by either 16 months, 2 years, or 3 years in prison. 261.5(d). If charged as a misdemeanor, the offender faces up to 1 year in jail. Id.

Civil Penalties for Adults Guilty of Statutory Rape

Adults guilty of statutory rape might also face fines and civil penalties.

The civil penalties increase with the difference in age between the perpetrator and the minor. When the perpetrator is an adult and the minor is fewer than 2 years younger, the maximum civil penalty is $2,000. Cal. Pen. Code 261.5(e)(1)(A). Where the difference in age is between 2 and 3 years, the perpetrator may be fined up to $5,000. 261.5(e)(1)(B). If the minor is more than 3 years younger than the adult, the penalty can be as much as $10,000. 261.5(e)(1)(C). The stiffest civil penalty, a $25,000 maximum, is invoked where the perpetrator is over 21 years old and the minor is under 16. 261.5(e)(1)(D).

Statute of Limitations for Misdemeanor Statutory Rape

In the case of misdemeanor statutory rape, the statute of limitations is 1 year from the occurrence. Whenever statutory rape may be charged as a felony, meaning whenever the age difference between the parties is more than 3 years, the statute of limitations is 3 years.

Mistake of Fact

Although statutory rape was historically a strict-liability crime, California now recognizes a defense where the perpetrator participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief. People v. Hernandez, 39 Cal. Rptr. 361, 364 (1964). This acceptance coincided with the raising of the age of consent. Accordingly, the crime of committing lewd or lascivious acts with a child under the age of 14, Cal. Pen. Code 288(a), remains a strict-liability offense.

Conclusion

The purpose of statutory rape laws has historically been to protect young women, who lacked the maturity to consent to sex. Although most states have changed their statutes to make them gender-neutral, males remain at a higher risk for being prosecuted for engaging in teenage peer sex.

Because of the need for bright lines in the law, teenage couples must wait to have sex until each turns 18 to avoid breaking the law. The laws purpose is to protect minors and not to prohibit relationships in which one party is much older than the other.

In California, there is no peer-sex exemption; so, one minor can be prosecuted for having sex with another consenting minor. An adult found guilty of statutory rape faces civil penalties in addition to jail time.

Because of the way the law is set up, the prosecutor has broad discretion in trying statutory rape offenders. The prosecutor can choose not to bring charges where they are not appropriate. In many cases, the state also has the decision of whether to charge the crime as a misdemeanor or a felony. If the prosecutor chooses to take a hard line, a person accused of statutory rape should hire a defense attorney who will be aggressive in protecting the defendants rights.