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Hiring the right criminal defense attorney can make the difference between a guilty or not guilty verdict. Every client needs a criminal defense attorney committed to explaining the laws and possible defenses, challenging the prosecutor's case, and relentlessly fighting on behalf of their clients.
Jonathan Franklin Is Available To Assist You In Your Criminal Case
At the Los Angeles Criminal Lawyer Law Firm, we are with you every step of the way from arrest to trial. Contact us 24 hours a day, 7 days a week at 310-502-1314. Our consultations are free.
If you find yourself arrested and facing a DUI or another criminal charge in Los Angeles, or anywhere throughout Southern California, you cannot risk trusting anyone but the most skilled and dedicated defense attorney to handle your case.
The penalties of a criminal conviction often include years in county jail or state prison, heavy fines in the hundreds to thousands of dollars range, years of probation, community service requirements, and in the case of DUIs and certain other driving crimes, loss of your California driving license for years on end.
Furthermore, the creation of a permanent criminal record, especially in DUI and felony cases, becomes a major impediment in finding gainful employment, getting accepted on a college application, or even being approved for an apartment lease. Inexperienced or under-concerned public defenders or "law mills" that don't give your case the personal attention it deserves have a poor track record of winning the best for their clients.
But we at Los Angeles Criminal Lawyer take a different approach. We put the best interests of our clients first in everything we do, from the moment you first pick up the phone to call us for help to the conclusion of your case.
We have been in the business of defending L.A. Area residents against DUIs and a wide array of criminal allegations for over 20 years, have successfully handled over 3,400 cases, and have a hard-earned 99% client satisfaction rate and a perfect-10 Avvo score.CALL NOW
At Los Angeles Criminal Lawyer, we can handle your DUI or criminal defense case from beginning to end. We know how to effectively fight for your best interests at every phase of the criminal defense process, be it at a DMV hearing or in a jury trial.
If you have just been charged, fear you may be under police investigation and charged soon, or if you are switching from another law firm that did not serve you well - we can pick up your case from where you are at and stay with you every step of the way till we reach a satisfactory conclusion.
At your bail hearing, bail will be set if it is determined you are eligible for bail, which most people are unless it's thought you would be likely to flee justice and not appear for your trial.
Oftentimes, we can recommend to you a trustworthy bail bonds agent if you call us first from jail with you allotted phone call, and this often gets you a 20% discount on your bail bond fee.
Getting out of jail before your arraignment and consulting with us to get started on building a solid defense, will help you be better prepared for your arraignment and all that lies beyond in the criminal defense process.
After your arrest, the first court appearance you must make is called your "arraignment." This is the time to enter a plea of "guilty," "not guilty," or "no contest."
You should basically always enter a "not guilty" plea, at least initially. A plea bargain later on might involve pleading "guilty" in exchange for a deferred entry of judgment which could ultimately get your case dismissed and keep your criminal record clean.
At Los Angeles Criminal Lawyer, we always fight first and foremost for a dismissal or acquittal, though we also possess well honed negotiating skills with which we can secure you a favorable plea deal if/when that's the best possible option.
The Pretrial Phase
Most cases in California are resolved in the pretrial phase and never have to actually go to court. Thus, you need a lawyer on your side who understands well this phase of the defense process and has a good track record pretrial.
Pretrial, we can contest that any crime occurred or that there is any probable cause to believe that you may have committed it. We can also enter a PC 1538.5 motion to set aside evidence illegally obtained, a pitchess motion to challenge the credibility of an arresting officer's testimony if he/she has a history of police misconduct complaints, or file other pretrial motions that may get your case dismissed.
In some cases, plea bargains will be hammered out during the pretrial process. But we will never agree to a plea unless it's your best available option and you yourself are agreeable to it.
At Los Angeles Criminal Lawyer, we have a strong track record of winning in court. Our opponents on the prosecution side know this and often drop cases or agree to favorable pleas pretrial to avoiding facing us in court.
But if we do go to a jury trial, we know how to challenge the evidence and arguments of the prosecution, cross examine witnesses they produce, call in our own witnesses, and effectively present exculpatory and/or mitigating evidence in your favor.
A full acquittal is always the goal, but some trials may end in a plea deal as well.
The Sentencing Hearing
If you are found guilty of the offense charged against you, you still have an opportunity to fight for a lighter sentence at the sentencing hearing.
Both prosecution and defense will explain to the judge what they feel an appropriate sentence would be and why. We will present mitigating factors in your favor that could convince the judge to give you something closer to the minimum instead of the maximum end of the penalty scale.
After a DUI or DUID arrest, your license was taken and a pink temporary license (good for 30 days) given you in its place. To get a chance to prevent losing your driving privileges in 30 days, you need to contact the DMV to request an administrative hearing within 10 days of your arrest.
The DMV hearing is not a trial but an administrative process. Nonetheless, it can still result in your losing your license, having to attend DUI School, paying heavy fines, being forced to install and IID (ignition interlock device) at your own expense, and other penalties.
It is important to come to the DMV hearing with expert DUI defense on your side. We will know how to find any weak points in the DUI case against you and use them to get your case dismissed or at least secure a lesser charge/penalty.
Note it is possible to have both a DMV hearing and a DUI trial for the same offense. We have the expertise to represent you well in both. [For more on DUI/DUID defense, see our practice area section just below.]
Unlike some California criminal defense law firms that only possess expertise in a few practice areas, we at Los Angeles Criminal Lawyer have decades of combined experience across a wide range of practice areas.
Here are 10 of our most common case-types, but please note that this is not meant to be an exhaustive list.
In California, "assault" is defined in the state penal code as an "unlawful attempt to inflict bodily injury on another person." It is an attempted act of battery.
The one who commits assault must have had the intention of doing so - there is no such thing legally as an "accidental assault." Plus, the prosecution must also show you had the "present ability" to commit the intended assault. That is, a person crippled and, in a wheelchair, can't be guilty of assault because he was "trying" to walk across the room and break someone's arm, for example.
PC 240 is California's statute on "simple assault," but aggravated assault can also apply and lead to steeper penalties if there was a serious injury inflicted or if the attempted injury would have been particularly severe. Further, you can get a stricter sentence if an assault was made against persons in a protected class, like police officers, the elderly, or the disabled.
At Los Angeles Criminal Lawyer, we understand the details of what does/does not constitute assault under California law. We know how to defend you against this charge. Often, assault is difficult to prove because it's a crime of intent, and we make sure the standard of "beyond reasonable doubt" is upheld in these types of cases.
Under California Penal Code Section 242, any attempt to unlawfully inflict bodily injury on another person in which the perpetrator touched the victim, even if just barely making contact for a moment, counts as "battery."
No actual injury has to be inflicted for a battery to have occurred, though cases in which none did might be able to be plea bargained down to an assault case.
Under PC 243d, there are sentencing enhancements that apply if "serious" bodily injury was inflicted in a battery, and if battery is committed against a police officer, emergency medical worker, traffic control or transportation worker, and certain other protected classes of people, the penalty will likewise be heightened.
Even simple misdemeanor level battery can get you 6 months in county jail and a fine of up to $2,000, while felony and aggravated battery conviction have steeper penalties.
At Los Angeles Criminal Lawyer, we use a variety of effective defense strategies to defend against California battery charges, including: lack of intent, lack of contact, mistaken identity, false accusation, and lack of sufficient evidence to convict.
Domestic violence can take many forms, and it's often the same as assault and/or battery as to the act committed. But what defines domestic violence as domestic violence is the relationship that existed between the perpetrator and the victim at the time of the crime.
Specifically, violent acts attempted or committed (or threatened) against a spouse, former spouse, cohabitant, romantic partner, or the other parent of one's child count as acts of domestic violence. Oftentimes, children are involved in these situations as well, and so child abuse (as well as elder abuse) is sometimes considered to be a form of domestic violence as well.
Domestic violence accusations are made falsely more often than almost any other alleged crime. Often, a false charge of domestic violence is made in an attempt to win a child custody case, for example, or out of a spirit of revenge because a relationship broke apart.
At Los Angeles Criminal Lawyer, we understand how domestic violence charges arise and how to defend against them effectively. We get to the bottom of fabricated or exaggerated charges and ensure you don't lose custody or your child or suffer other negative consequences due to an unjust domestic violence conviction.
In California, a DUI is defined as operating a motor vehicle with a BAC level of .08% or higher, .04% if you are a commercial driver, and as little as .01% if you are under the legal drinking age of 21. Plus, regardless of BAC, if you can be shown to have had your driving ability impaired (even a little bit) because alcohol was in your system, it's still a DUI.
Driving under the influence of drugs (DUID) is punished the same as DUI in California, but there is no special quantity of drugs that must be present as with alcohol, and therefore, it's always a matter of showing that one's mental or physical impairment due to the influence of the drug, caused them to drive with less caution than a sober person would do in the same situation.
A DUI/DUID can lead to a license suspension that lasts from 4 months to 4 years, fines in the thousands of dollars range, DUI School, mandatory installation of an IID at your expense, community service, jail time, and other penalties.
At Los Angeles Criminal Lawyer, we know how to get DUIs dismissed for police violations of your rights or challenge the evidence of the prosecution to gain an acquittal. We also often win a charge reduction, such as to wet/dry reckless driving.
And we know how to effectively fight to get penalties reduced and made more bearable. For example, we often can get actual jail time waived for community service and get you a restricted license to drive to/from work, school, or DUI Class.
Aside from DUI and DUID, there are many other misdemeanor and even felony level driving crimes you can be charged with in California.
At Los Angeles Criminal Lawyer, we have deep experience in all of these driving crime practice areas, including: road rage, evasion of an officer, hit and run, (wet or dry) reckless driving, driving on a suspended license, driving without a valid California license, driving on the wrong side of the road, and more.
Some of the more serious driving crimes can cause you to lose your license, subject you to heavy fines, or even result in jail or prison time. But even the less severe misdemeanor driving crimes can put points on your driving record that might lead to license loss or to being classed as a Habitual Traffic Offender (HTO). HTO status can last for years, and it means any new serious violations while HTO status applies will be punished more severely than normal.
At Los Angeles Criminal Lawyer, we are familiar with both the DMV and jury trial aspects of all manner of California driving crimes defense processes. We know how to build you a solid defense for any and all of these charges regardless of your prior driving record or the details of your case.
In California, there are a great variety of possible drug crime charges, each of which has its own very specific legal definition and requires a unique approach by the defense attorney.
We at Los Angeles Criminal Lawyer, we have minute knowledge of all relevant portions of the California Penal and Health & Safety Codes as they apply to drug crimes. We have successfully defended numerous others against the full gamut of drug crimes charges in the past, and we stand ready to do the same for you.
Whether it's simple possession of a controlled substance, using or being under the influence of an illegal drug, or a more serious crime like possession for sale, drug sale or trafficking, or manufacture of illegal narcotics, we have the time-tested expertise it takes to win your case.
Marijuana use is still illegal in California for those under the age of 21 or in quantities over one ounce (8 grams). And wrongful possession, sale, or use or legal prescription drugs also counts as a class of drug crime.
Having any kind of controlled substances abuse charge on your criminal record can make it difficult for you to live "a normal life" as in find a good job, attend college, and pursue other endeavors. Therefore, it is worthwhile to use a skilled defense lawyer to counter even the least serious drug charges.
We have a long and strong track record of securing pretrial dismissals, acquittals, and favorable pleas that reduce your charge and/or sentencing elements, for all subclasses of California drug crimes. We will know how to defend you or your loved one who has been arrested and charged with any drug crime on the books.
Los Angeles Criminal Lawyer has deep experience in defending against a wide range of theft crimes in the L.A. Area and throughout Southern California.
Any illegal taking of the property of another person without his/her knowledge and consent is a theft under California law.
Whether it's petty theft (under $950 taken), grand theft ($950 or more stolen), receiving of stolen property, appropriation of lost property, burglary, shop lifting, robbery, car jacking, grand theft auto or firearm, we have handled many such cases before and understand the law, legal processes, and courtroom dynamics involved.
Typical defenses against theft crimes include: did not take the property in question, you were the true owner of the property or had a reasonable belief that you were, and lack of intent to deprive the owner of his/her property. But there are many other possible defenses, suited to particular theft crime charges, and we know how to build your defense from the ground up based on the details of your case as well.
At Los Angeles Criminal Lawyer, we frequently win dismissals and acquittals on all manner of theft crime charges, and where that is not possible, we win a reduced charge/sentence as part of a favorable plea agreement.
Fraud is a special class of theft crime in which not only did you unlawfully take property not belonging to you, but you also committed an act that enabled you to enjoy an undeserved benefit and/or caused an undeserved loss to another person or to a company or government agency.
Fraud may also involve the violation of a trust, as in embezzlement; and most fraud crimes are committed for the sake of financial gain or to hide one's identity or otherwise escape conviction for some other crime already committed.
Although fraud is considered a "white collar" crime, in fact, many charged with a fraud crime are in the lower economic tier. Examples of fraud crimes include: forgery, embezzlement, insurance fraud, real estate or mortgage fraud, check fraud, credit card fraud, identity theft, Internet fraud, senior fraud, mail fraud, and many more.
Many fraud crimes are punishable by years in jail or state prison and hefty fines, and the damage done to your reputation could make it difficult to hold a good job or lead to the loss of your state-issued professional license. Thus, these charges are serious and require a skilled defense lawyer with deep experience in the exact relevant practice area, to secure the best possible outcome to your case.
In California, even non-violent crimes can have severe penalties, but when a crime is of a violent nature, it will receive even more severe and long-lasting sentencing elements.
Plus, under California's Three Strikes Law, violent crimes often count as "strikes." A second strike leads to a doubled sentence, and a third strike can get you 25 years to life in state prison. Keeping violent felonies and all "strikes" off your record in California is clearly of the highest importance.
Examples of violent crimes under California law include: murder, manslaughter, assault and/or battery, making criminal threats, extortion, car jacking, assault with a deadly weapon, arson, domestic violence, kidnapping, stalking, robbery, crimes committed with a firearm, and others.
Some violent crimes can get you long prison terms, life in prison, or even the death penalty. These are the most serious of all charges you can face in a California court, and you can't afford to be without the absolute best possible defense.
At Los Angeles Criminal Lawyer, we will fight for your future tenaciously and apply the full force of our extensive legal knowledge and experience in your behalf. We have a long track record of winning these types of cases, and we look forward to helping you in your hour of need as well.
It's not at all uncommon for minors to be arrested and charged with criminal offenses in California. But in most cases, they can have their cases handled in the California Juvenile Court system and get less severe sentences plus correctional assistance to help avert a repeat offense - even in those cases where a dismissal or acquittal isn't a realistic outcome.
But of course, we fight to defeat the charge against you or your son/daughter just like with adult cases. And we have gotten many juvenile cases dismissed for lack of evidence, by presenting positive evidence in our client's favor, or by citing police violations of the minor's rights.
The most common criminal charges faced by juveniles in California include: theft crimes, underage drinking, underage DUI/DUID, underage marijuana use, vandalism, hate/gang crimes, weapons violations, sexting nude images of minors (including themselves) which is considered child pornography, and statutory rape (when both parties involved in sexual intercourse consensually were under 18.)
At Los Angeles Criminal Lawyer, we are fully familiar with how to navigate the juvenile court system and with how to defend minors against all manner of criminal charges so as to secure for them the best possible outcome to their case, an outcome that won't destroy their whole future.
Sex crime charges such as lewd conduct are some of the common criminal offenses we handle at the Los Angeles Criminal Lawyer. Similar to other sex crimes, lewd conduct can carry stiff penalties, and a person can be charged wrongly. If you are facing these charges, get in touch with us so that we can help build a strong defense for you and possibly have the charges dropped or penalties reduced.
Lewd conduct is any act that is sexual in nature and is considered stunning, indecent, or disgusting to a normal person. Some of the acts described as lewd are:
The law on lewd acts is found under PEN 647a. A person is accused of violating lewd conduct law when:
In order for a person to be convicted of this crime, the prosecution must prove the following facts:
The above aspects are also known as the elements of the crime, and we discuss them in detail below:
As earlier mentioned, these are dissolute acts found under PEN 647a. They refer to fondling or touching of privates parts of the offender or another person in public for sexual gratification. These acts are also intended to annoy other people, and for them to be a crime, they must be conducted in public. Let’s look at these elements in detail below.
Pen 647a does not expressively discuss intent. However, it prohibits a person from doing dissolute or lewd acts in public. With regard to the traditional description of lewd conduct, the courts have understood the language to mean activities that are sexual in nature.
According to a particular appellate court, the challenge is if a normal person can comprehend with certainty that their conduct is prohibited. Any activity performed without the intention to annoy or arouse is not illegal according to PEN 647a.
For instance, if you had a previous engagement and you were somewhere playing basketball. You ran late and decided to use a bathroom for the public to freshen up and avoid getting late for your meeting. In the process, you may decide to remove your pants to clean up your genitals. Should an undercover officer notice you holding your genitalia, they may arrest you and assume you were masturbating in public. However, due to the fact that you had no intention to annoy or arouse another person, you are innocent of lewd acts.
Even so, you must establish your reasons for doing that, and they should be innocent and believable. The burden of proof is on the prosecution to convince the court that your actions had unlawful intentions. This is not very easy for the prosecution unless the circumstances surrounding your behavior show clean intent.
In order for you to have violated PEN 647a, the lewd act must happen in:
The courts of California further gave a broad description of the public place. Some of the places that are considered public, though not limited to these are:
Some areas such as your home, closed business premises, or hotel rooms are not open to the public because they give privacy to the people involved. However, even as these locations are viewed to be private, during the act, the blinds or curtains should be shut. If open and the public can see, the conduct can then become a criminal offense.
In California, it is not entirely illegal to get involved in a sexual activity publicly. However, if there is a third party that will probably get offended by the act, it becomes illegal. If the perpetrator is aware of this fact and proceeds with the act, they will be prosecuted for lewd conduct.
Under PEN 647a, the main purpose of the law is public protection from the offensive nature of the conduct. In case the action happens at a location open for people to see, and no person is present to feel offended, the state will not be bothered to prohibit the act.
Apart from the probability of being noticed, there actually must be a likelihood that a third person is present. The upside of this is that in most instances, individuals arrested under PEN 647a are innocent by fact; even when the persons publicly engaged in sexual activity, they had reason to believe that:
Violating PEN 647a is charged as a misdemeanor offense with a maximum punishment of:
In some instances, the judge can also grant an informal or summary probation. Some of the conditions for informal probation are:
It is important to know that even when convicted of lewd conduct, the perpetrator does not need to be registered as a sex offender. Unfortunately, many prosecutors opt to charge it alongside indecent exposure charges that attract the need to be registered as a sex offender. Some will even ask that you accept guilty charges of indecent exposure and in return, they drop the lewd conduct charges.
When presented with such a deal, many defendants get attracted to accept the deal because they fear a conviction once the case goes on trial, and the outcome will be unbearable.
In order to arrest individuals performing lewd acts, most police operate undercover. For instance, the undercover officer can pretend to be gay. He may look for a convenient place like a bathroom in the park and waits for a man that seems gay to come by. The undercover officer is usually not in uniform and starts flirting with the other person. He keeps eye contact and may even touch himself in an effort to seduce the other person.
All this is an act to flush out the other person to agree and expose himself or herself to a sexual encounter. If the other man accepts to do any of these or starts doing them, he is immediately arrested for the offense.
Police can also have a discreet surveillance camera in a public place to monitor the conduct of individuals. If a cop sees individuals carrying on an indecent act from the camera, the officer can move in and arrest them.
In both these examples, the persons arrested believed that no person was present that would find offense in their behavior. In a case where the undercover officer was flirtatious, the person arrested had no way of knowing that their actions would offend. This is because they were doing the same. Even when the sexual act was done in a public place; they reasonably believed that they were not offending anyone. As such, they are not in violation of PEN 647a.
Most sting operations are set up in public areas by the police. Some common places include:
The police defend the undercover sting operations by claiming they are done due to multiple complaints from the public.
In most cases, when a person is arrested, the officer will issue a citation for them to make a court appearance. In other instances, the police can opt to arrest, take fingerprints, and book the offender then release him or her with a citation to appear in court.
Regardless of how the arrest was made, the moment you get a citation, get in touch with a defense attorney immediately. Normally, between the arrest and when the case is reviewed, there is a gap. If you have a lawyer, he or she can arrange an appointment with the District Attorney to try and convince them against filing the charges.
Additionally, because of the charges being a misdemeanor, you will not have to attend court, but your lawyer can represent you. This gives you the freedom to continue doing other things that you need to. Once you go on trial, your lawyer is able to get all the police records and evidence against you from the prosecutor.
Your lawyer will start by inspecting the location where the action happened. The lawyer will further investigate the arresting officer to understand his credibility. Additionally, evidence will also be gathered from others that have arrested similarly from the same location. This is done to identify any weakness in the prosecutor’s case against you. If a weakness is established, your lawyer can use that to get the charges dismissed.
In some cases, the district attorney can ask the offender to plead guilty to a lesser charge such as trespassing under PEN 602 so that they may drop the lewd conduct charges. Many people facing lewd conduct charges prefer to take the plea because they feel embarrassed to be prosecuted for lewd conduct.
If negotiations before a trial fail, the case proceeds to trial with a jury. Most PEN 647a violation cases usually get a verdict of not guilty.
Common defenses that a lawyer can use depend on the circumstances that the act was committed and arrest made. Some of the most common defenses that a lawyer is likely to use include:
Should you not have been involved in the act you were arrested for; then you cannot be guilty of the same. The burden is always upon the prosecutor. He or she must prove to the court that you were involved in a lewd act.
Maybe you were in need of urinating, that is why you were touching your genitals. You could also have been cleaning yourself up, or your private area was itchy, and you were scratching. Regardless of the reason you touched yourself, the prosecutor must prove that you had a sexual intent when you did it. If they can’t do it, you are innocent of lewd conduct.
This defense tactic is commonly used to defend alleged offenders. Unless it is proven that you knew and were aware of the presence of a person that would get offended of the act, you cannot be guilty of PEN 647a violation.
It is not a crime to engage in sexual acts on private premises unless it is open for the public to view. If the place was not accessible to public viewing, you are innocent of lewd behavior.
Under the entrapment laws of California, the police are forbidden from inducing law-abiding individuals to engage in criminal activity that under normal circumstances they would not have. This may include the use of force or pressure, harassment, flattery, or threats. However, initiating a crime or creating an opportunity where crime can be committed is not entrapment.
In some cases, the prosecutor may decide to bring the charges of indecent exposure alongside the lewd conduct charges. If convicted of indecent exposure, the penalties are more severe, and the defendant will be required to register as a sex offender. Indecent exposure happens when a person intentionally exposes their genitals to a third party that gets offended. The exposure must also be for sexual gratification for it to be a crime.
Most of the time, the prosecution will refuse to dismiss charges on lewd conduct. However, they may require the offender to plead to lesser charges of trespassing. In California, trespassing under PEN 602 makes it illegal to enter the property of another person without their permission.
This is also another offense commonly used for a plea bargain. The law under PEN 415 prohibits:
The law prohibits an adult from touching a child for sexual gratification. The act is not limited to the location where it happens, but as long as it happens. It involves touching or asking the child to touch your private parts for sexual intent.
It is a felony to commit lewd acts with a minor. During prosecution, the age of the child and the criminal record of the perpetrator is taken into consideration. The penalties for this offense are severe in addition to registering as a sex offender.
This law is designed to protect the third party from individuals that will be peeping at them for sexual gratification. Most violations for peeping toms are misdemeanors, and the offenders will likely face the following if convicted:
Sex crimes are some of the most common crimes that you can be charged with. These offenses usually carry some of the stringent punishments under the law, including registration as a sex offender in some instances. If you are facing charges such as lewd conduct in Los Angeles, get in touch with the Los Angeles Criminal Lawyer at 310-502-1314. With our many years of experience in criminal defense and in-depth knowledge of the California criminal law, we are ready to help you find a favorable outcome in your case.
If you are being charged with a sex crime in Orange County or San Diego here are some recommendations: Pimping and Pandering Attorney
California laws are very stringent on sex-related offenses, especially those committed by the use of fear/force. An example of these offenses is oral copulation through fear/force. The offense is achieved when there is non-consensual contact between a person’s mouth, and another’s anus or genitals. Those convicted of this offense can be sentenced to up to twelve years in state prison and be required to register as sex offenders.
Oral copulation through fear/force is also an offense that will affect several aspects of your life, including damaging your reputation. Therefore, you need excellent legal representation to avoid a conviction if you face these charges. At Los Angeles Criminal Lawyer, we have a reliable team of well-trained and experienced attorneys that could help you understand your options, navigate the legal system, and protect your rights against violation. If you are charged in Los Angeles, CA, you can get in touch with us right away.
California law against oral copulation through fear/force is provided under Section 287 of the State Penal Code. The law makes it illegal for any person (the defendant) to forcefully or fearfully cause another person’s mouth (the victim) to come into contact with the defendant’s anus or genitals. The offense could also be committed if a defendant forcefully or fearfully causes contact between his/her mouth with another person’s anus or genitals. For the defendant to be found guilty under this law, the prosecutor must prove certain elements beyond a reasonable doubt. They are:
A person might also face accusations Under California Penal Law Section 287 for doing the following:
Examples of incidents that might result in charges for California oral copulation through fear/force include:
These examples clearly show no limit to what can be considered oral copulation through fear/force in California. Therefore, a person is charged based on several other factors, not just because fear or pressure was applied. To understand the offense even better, let us look into these factors in detail.
A person can only be charged with oral copulation by fear/force if there is evidence that they engaged in oral copulation. Oral copulation is the underlying offense in this case. Remember that the act will still count, however slight the underlying offense was. Again, no penetration is required, just contact between a person’s mouth with another’s sexual organs, including the anus or genitals. A man’s sexual organs will consist of both his penis and scrotum.
Example: On her way home from college, Sarah is lured by James to his home. While in his room, James forces Sarah to lick his genitals. James is older and stronger than Sarah. Therefore, Sarah is incapable of fighting back. However, she fights hard and only licks his scrotum before she frees herself and runs for the door. Sarah reports the incident to her parents, who later recorded a statement with the police. James is arrested and charged with oral copulation through force.
Note that James could still be convicted even though his penis did not penetrate Sarah’s mouth. The offense always counts. However, slight contact was between Sarah’s mouth and James’s genitals.
Oral copulation through fear/force only happens when the victim does not give consent. Most California sex crimes’ main element is lack of approval/consent, including rape and lewd acts with a minor. A person is said to have given consent to a sexual act if they:
Consent can be given and withdrawn almost immediately. A person can freely agree to engage in oral sex and then change their mind before the deed begins. If the next person proceeds to have oral sex with them, it becomes unlawful and could amount to oral copulation through fear/force.
Example: Liz and Max agree to try oral sex one afternoon. It is their first time engaging in any kind of sexual activity, so Liz is very nervous. Just when they are about to start, Liz changes her mind and informs her partner. However, max would have none of that and proceeds to force Liz into the act. If reported, max could be convicted of oral copulation through fear/force.
Note that consent has to be given, even if the alleged victim and the defendant are or were in a relationship in the past. The fact that the two are married or were married before does not automatically mean that consent has been given. Again, just because the victim asked the defendant to use a condom does not mean that she had consented to the act.
However, there are instances when the defendant could have reasonably thought that the victim had consented to the sexual act. If the defendant can prove this in court, he/she may not be found guilty of California’s oral copulation through fear/force.
Fear or force, as used under this law, could mean that the offense was committed through any of these acts:
Example: Tom and Jones abduct a 16-year old girl outside her home. They take the girl to an abandoned building near her home, intending to rape her. While there, the two force the girl to engage in oral sex with them. Tom threatens to harm her family if she doesn’t comply and even shows her a gun. If reported, Tom and Jones could be found guilty of oral copulation through fear/force.
A person who performs oral copulation on a highly intoxicated person could also be charged with oral copulation through fear/force. The charges will apply if one or both the following statements are factual:
This will stir up the prosecutor’s issues, mainly because most sexual encounters happen when at least one of the participants is intoxicated. However, the law could still help clarify matters further. Section 287 of the California Penal Code considers a person highly intoxicated to consent if they are incapable of understanding the physical details of an act, its morality, and possible consequences.
The defendant could still present an adequate defense here by convincing the court that the alleged victim may not have been too intoxicated at the time. If he/she manages to persuade the court, then the court may drop his/her charges.
Like a highly intoxicated person, an unconscious person may not be able to give consent to any form of a sexual act. Thus, performing oral copulation on a person like that could yield oral copulation charges through fear or force. To be found guilty of oral copulation of a highly intoxicated person, the prosecutor must prove the following:
Note: The victim doesn’t have to be medically unconscious for this law to be used. What is needed is proof that the person was unconscious/unaware of the details of that act, which could be proven by:
Lastly, a person can face oral copulation charges through fear/force if the victim is a disabled person. The following elements will be used to prove whether or not the defendant is guilty under this category:
In California, the crime of oral copulation through fear/force is convicted as a felony. The following are possible penalties a person could receive after conviction:
However, if the offense is committed against a minor below 18 years, the court increases the prison sentence. Therefore, the offender may receive:
Again, the consequences for oral copulation through fear/force increase if the defendant committed the offense in concert. As used in this context, the defendant committed the crime together with one or more people. The enhanced consequences will apply if the defendant took part in the commission of the act, or he/she merely abetted or aided the commission of the offense. If any of those applies, then the court will issue penalties as:
Among the grave consequences of most sex crimes in California is the offender’s requirement to register as a sex offender for a given number of years. The consequences apply even for those convicted for oral copulation through force/fear. The court will order the offender to register as a three-tier sex offender for life. It means that the offender will have to register with law enforcement every year in the county or city of their residence. The registration must be renewed yearly, at least five days after their birthday. The offender will have to register every time they relocate to a new place.
Registering as a sex offender is a severe consequence, just like a jail sentence, because the state’s sex-offender registry is available for public view. The registry will even show the general public those registrants who have violated the registration.
Generally, California’s oral copulation through fear/force is a life-changing offense whose conviction can affect many aspects of a person’s life. Thus, an accused person may greatly benefit from engaging a competent criminal attorney’s services to handle their case.
As mentioned above, fighting charges for oral copulation through fear/force is the only way to avoid the grave consequences of a conviction. Fortunately, California law allows an accused person to defend themselves against criminal charges. All you need is the help of a highly skilled and experienced attorney. Several defense strategies against this charge are available that your attorney can use in your favor. If successful, your attorney may compel the court to either drop or reduce your charges. The latter will see you facing fewer penalties than you could have if convicted of the underlying charge. These defense strategies include:
Anyone is subject to false accusations, and if you are not careful, you may pay heavily for an offense you did not commit. Thus, it is not unusual for a person to face false accusations for a severe crime like oral copulation through fear/force. Most sexual offenses do not happen in broad daylight, and so, there is usually no irrefutable evidence to convict an offender. Many people take advantage of this to falsely accuse others as a way to get revenge against them. It could be a current or former sexual partner. Others make false accusations out of jealousy or anger.
A competent criminal attorney can help you avoid a conviction and the negative consequences of this offense. He/she should gather enough evidence to prove that you are innocent of the charges you face. If successful, the court will drop or reduce your charges.
If consent was given, then the defendant will not be found guilty of oral copulation through force/fear. However, the challenge is in proving that, indeed, consent was given. The prosecutor will be facing the same challenge of proving that the alleged victim did not give consent. An experienced attorney should come up with a stronger argument that you believed that consent was given. He/she could also try to weaken the prosecutor’s case, considering it is difficult to prove beyond reasonable doubts that there was no consent. If successful, you will not be found guilty of the offense.
There is not much evidence that can be used to prove oral copulation through force/fear. Thus, the defense side can always cite insufficient evidence to have the charges dropped or reduced. Again, the prosecutor will be tasked with proving all the offense elements beyond a reasonable doubt. If the evidence presented is insufficient or too weak to support the claims, the court could throw out the case.
Victims of sex-related offenses do not get a strict deadline within which they must bring up a case against their offenders. The law understands that it is not easy to speak up after a terrifying ordeal. Again, sometimes the victims require a little more time to heal.
Thus, the law gives victims of oral copulation through fear/force that was 18 when the offense was committed until they turned 40 to file a case against their offenders. Alternatively, the prosecutor may file charges for the same violation a year after:
If, on the other hand, the victim was an adult (over 18) when the offense was committed, the law gives him/her up to ten years to file a case in court against their offender.
In any case, the prosecutor must charge the suspected offender within a year after their identity has been established through DNA testing.
Additionally, victims have a right to bring a lawsuit against their offenders in a civil court to recover compensation. Remember that the results of a criminal trial will not affect this right. A civil court will only require the victim to prove that the alleged defendant committed oral copulation through fear/force against them. If successful, the victim could recover all the damages incurred, including the pain and suffering they endured and punitive damages.
The law allows spouses of sexual assault victims to file a lawsuit against their spouses’ offenders for loss of consortium. A partner could argue that the alleged defendant’s actions injured his/her spouse to the point that they no longer enjoy their partner’s intimacy, moral support, or companionship.
Additionally, the court could award the victims punitive damages to punish the offender further. It is also a way to warn other would-be offenders against the same or similar behavior.
California’s sex-related charges, such as oral copulation through force/fear, can significantly affect your life. A conviction will cause you to spend years behind bars and affect your finances and reputation. Thus, you need the best legal representation you can get to fight those charges. At Los Angeles Criminal Lawyer, we believe that you are innocent until proven guilty. You may have been falsely accused or thought that consent was given. That is why we will help you through the legal process and fight with you for a favorable outcome. Therefore, if you are in Los Angeles, CA, call us at 310-502-1314 and let us determine the right course of action to take.
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