Sex Crimes

Santa Clara District Attorney: No Charges Filed for Alleged Sexual Assault at Stanford University (CA Penal Code 243.4)

The Santa Clara District Attorney has decided not to file charges against a Stanford University graduate for alleged sexual assault  (CA Penal Code 243.4). 

Prosecutors with the Santa Clara District Attorney’s office have deemed that there is insufficient evidence to charge the student.  It is the duty of a District Attorney to only charge cases they feel they can win at trial. 

Govinda Dasu was arrested on Sept. 24 after officers were called to his room.

Given the recent changes in law as well as the general atmosphere in San Jose around sexual assaults involving Stanford students, we truly respect the District Attorney’s decision to file charges given emotional and political pressure. 

Meanwhile, the witch hunt against Judge Perski in Palo Alto continues.  This time for another Judge’s decision to allow a student another chance to complete the Domestic Violence counselling Judge Persky ordered him to complete. 

This is the state of the law in Santa Clara.

Sex Crimes & Statute of Limitations – Yet Another Blow to Judicial Limits (CA Senate Bill 813)

Sex crimes and statute of limitations – yet another blow to judicial limits

On September 28, Governor Brown signed into law a provision that eliminates the Statute of Limitations for certain sex offenses (CA Senate Bill 813).  Currently, the statute of limitations is governed by CA Penal Code 803.  For the most part, the statute of limitations is either 10 years and can be as long as 10 years from the alleged victim’s 18th birthday.

The new bill would eliminate a statute of limitations for rape (CA Penal Code 261), sodomy, and lewd or lascivious acts (CA Penal Code 288).  The only other crime that has no statute of limitations currently is murder.

Obviously, proponents of the new law cite the need for victims to get justice.  What they failed to consider is that there is a good reason for the statute of limitations.  Victims of crime in general deserve vindication but there is no effort to eliminate the statute of limitations for all crimes.  This is so because a criminal conviction requires fresh memory and an availability of defense witnesses.  Such is the case for theft cases and such is the case for sex cases.  Perhaps someone should ask governor brown how he would find a witness for an incident that occurred 20 years ago, that could alter the course of someone’s life 20 years later.  If this questions is posed, perhaps he won’t be so quick to assuage every political pressure put upon him.

Palo Alto Judge Recuses Himself from Hearing Routine Child Porn Case (CA Penal Code 311)

We all know the background of Judge Persky and the absurd effort by Stanford law professor Michele Dauber to recall Persky.  It is, indeed, difficult to find anyone who doesn’t have very strong emotions about this matter.  But emotions aside, any legal professional (professors not included) would attest that the sentencing decision was appropriate and in line with other similarly situated defendants.

But now, Judge Persky has opted to recuse himself from the case of Robert Plummer, a child porn case (CA Penal Code 311) a case Judge Persky has overseen since its inception, despite the fact that there appears to be no conflict whatsoever.  That this is a routine request by a defendant under CA Penal Code 17, to reduce a wobbler offense to a misdemeanor makes matters even more confusing.

As a background, many California crimes are wobblers in that defendants can be charged with a misdemeanor or a felony.  Possession of child pornography (CA PC 311) is one of those wobbler offenses.  The law allows the prosecutor an initial discretion to decide whether a particular offense is a felony or  a misdemeanor, however, this discretion is subject to judicial review.  A judge could, after hearing the facts of the case and evaluating the conduct as well as the defendant’s background deem the matter a misdemeanor at any stage.  Many defendants who are convicted of a felony use the mechanism under CA Penal Code 1203.3 and 1203.4 for a reduction to a misdemeanor and expungement of their record.  This remedy is limited and DOES NOT remove the lifetime registration requirement under CA Penal Code 290.

That said, Judge Persky’s decision to recuse himself from a routine request for a remedy we would all enjoy reveals the political pressure that the Brock Turner sentence has caused.

Sex Crime Registration – Are we more safe? (CA Penal Code 290)

The vast majority of people can agree, that sex offense registries don’t work, are not based on any sort of scientific data and cast a very wide net.  Perhaps, society should keep track of certain individuals if it truly feels the individual poses a risk to society.  It isn’t clear why sex offenses are singled out, but it is clear that there are far too many “offenders” caught by this net. This is so because a prosecutor or a judge will often opt to cover himself, than allow someone who has committed a sex crime to be removed from the registry.  In California, registrants under penal code section 290 are overcrowding short staffed probation departments.  That is, the very idea that certain offenders need monitoring is hampered by the number of individuals the system is to monitor.

Here are some examples of offenses that require registration from our own practice.  For the sake of argument, we can start with a more serious allegation:

CA Penal code 288 – Lewd act on child under 14.  Our client was a janitor who gently touched the hand of a 12 year old girl.  Another was a 19 year old blind man who was in a dating relationship with another blind 14 year old.  There is no advantage of having either of these individuals register.  A forensic doctor who evaluated them concluded that they pose little risk of re-offending.

Some more examples include conduct as benign as tapping the buttocks of a woman in a concert and kissing a stranger in a drunken state.  (sexual battery in violation of penal code 243.4). The fact that the law even contemplates this sort of conduct requires a life time penalty is absurd. Some prosecutors would insist that this outcome is draconian.

After a conversation with the supervising District Attorney at a local bay area jurisdiction, I realize that this culture of fear has made us all insane, untrusting of others and the system in general.  Truth is, there are not more sexual deviants than in past years.  Let your kids out of the house.  Don’t fear your neighbors.  This is not the America we know.

Still, the federal government appears ready to add insult to injury by legislating an International sex offender registry.  This law calls for markings on the passports of those convicted of certain offenses.  Presumably, they will have a hard time traveling outside of the united states even as they have a hard time finding a place to live inside the country.

At some point, this entire legal doctrine is revealed as a scheme to sow fear and a sense of insecurity.  Perhaps someone wants to offer a new legislation that sex offenders must have tattoos on their arms.  As things go, I can’t imagine there will be many to oppose such a law.

San Jose Sergeant arrested for Indecent Exposure (CA Penal Code 314)

A San Jose Sergeant was arrested for charges of misdemeanor indecent exposure in Redwood City (California Penal Code 314) after he allegedly masturbated in his vehicle while exposing his privates to a 39-year-old woman.  It is alleged that the woman initially ignored the Sergeant but that he followed along side her while continuing to expose his genitals.

Should the Sergeant be convicted of indecent exposure charges, he is facing a jail sentence up to 6 months, a maximum fine of $1,000, as well as mandatory lifetime registration as a sex offender (California Penal Code 290). Felony charges of the same kind can end in heftier fines and time in state prison.  He is currently on paid administrative leave pending the outcome of the case.

Regulating Massage Parlors in San Jose (CA Penal Code 647(b))

Due in part to complaints from citizens, authorities in San Jose have began cracking down on Massage Parlors.  In 2014, authorities investigated over twenty local parlors and have issued civil citations, criminal complaints for violation of California Penal Code 647(b) as well as eviction notices.  None of the establishments investigated were found to have engaged in human trafficking.

The Massage Therapy Act passed in January allows local governments increased control over all massage therapists but it is clearly aimed at those suspected of illegal activities. Now city officials state a concern that this will create a vast demand for escort services and that a new effort is needed to curb an expected surge in illicit activities. Citizens should expect more sting operations as well as additional civil complaints and citations against the business establishment.  Finally, it is clear that San Jose is aiming to begin a large scale Human Trafficking investigation.

CA PC 647(b) prohibits prostitution and solicitation. Any person who either actually participates in prostitution, agrees to have intimate relations with a prostitute, or offers to engage in acts of prostitution may be prosecuted under this law. Usually being charged with prostitution is considered a misdemeanor, carrying with it a penalty of up to 6 months in county jail and a potential $1,000 fine.

Oakland’s Sex Trafficking Stings – Politics, Grants and Waste! (CA Penal Code 647(b))

District Attorney in Alameda County, Nancy O’Malley has made sex trafficking a major campaign issue.  The recent $15 million Federal grant is meant to combat the problem of human trafficking, specifically trafficking minors.  This is a lofty and honorable goal.  Human trafficking is a felony and is severely punished, especially since the passage of proposition 35.  This opinion is not meant to address proposition 35 nor the appropriate sentences for those convicted of human trafficking.  Instead, this opinion’s focus is on the means used to combat human trafficking and the manner in which Alameda County is using Federal funds.

Over the past few months, several police agencies in Alameda have engaged in repeated sting operations meant to arrest those soliciting prostitutes (CA Penal Code 647(b)).  These stings make no distinction between those looking for mature, willing prostitutes and minors under control of pimps etc.  Instead, these costly operations have led to massive arrests of men for misdemeanor violation of solicitation (CA Penal Code section 647(b)).  This uptick in arrests is used as a political platform and the number of arrests meant to win political support.  However, arresting and prosecuting men for misdemeanor violation does very little to combat trafficking of minors.  Almost without exception, these arrests are a result of ads placed on prominent sites such as Backpage.com in which men are lured into soliciting what they believe is a consenting adult, not a minor.  Shaming and prosecuting those engaged in such behavior may win political points but does nothing for the stated goal. Using the number of arrests as a slogan without distinguishing the nature of arrest is a shameful tactic and a misuse of public funds and trust.

The war against human trafficking, like any war, must focus on those engaged in the behavior we seek to curb.  There are many consenting adults engaged in prostitution (PC 647(b)) and arresting and prosecuting these individuals does nothing to help those this witch-hunt is meant to protect.

Sex Offender Registration – Reaction or Policy? (CA Penal Code 290)

In a bizarre and mostly academically dishonest opinion, (Johnson v. Department of Justice) the Supreme Court of California essentially overruled the previously controlling opinion in People v. Hofsheier.  Hofsheier meant to correct an obvious conflict in the California Penal Code section 290.  Simply put, CA Penal Code section 290 requires those who orally copulate a minor (CA Penal Code Section 288a(b)(2) to register as sex offenders while not requiring those who have sex with a minor (CA Penal Code section 261.5) the same.  For years, no one doubted the obvious rationale behind this ruling.  Courts, DA’s and defense counsel found Hofsheier intuitive and rational.

The Supreme court’s reasoning is hard to decipher.  In order to overrule the previous opinion, the courts cites the preservation of family as a possible legislative intent behind the statutory scheme in CA PC 290.  That is, the court states that the statutory scheme is not contradictory as the legislature’s inclusion of obviously less severe conduct (oral copulation) is meant to protect those who may have had sex with a partner it can cause a pregnancy and requiring the father of such a relationship to register as a sex offender may interfere in the formation of a healthy family.

This is clearly an absurd conclusion for many reasons:  First, the defendant who orally copulates a minor, is not less likely to marry the minor and produce offspring.  Second, given that CA PC 261.5 contemplates only heterosexual intercourse, Any homosexual behavior is therefore subject to the registration requirement.  Finally, as the court states, CA PC 290 is meant to allow police and probation departments to keep track of certain predatory individuals.  It is time we admit that requiring so many defendants to register as sex offenders makes it impossible to keep track of those more likely to reoffend.  At a time when every county in the state is making budget cuts, it is imperative that only those defendants that are likely to reoffend should be subject to mandatory life time registration.

The opinion is unclear on whether previous plea agreements, in which defendants were charged with a registrable offense, but which entered a plea to CA PC 261.5, most likely for the express purpose of avoiding sex offender registration, may be subject to petitions by the District Attorney for inclusion in the list.

It is clear that this opinion is a move in the wrong direction.  It is up to the defense bar to navigate this obscure reasoning and avoid this serious consequence for our clients.  This opinion makes our task more difficult and society less safe.

18-Year-Old Man Arrested for Annoying, Molesting a Child in Roseville (CA Penal Code 647.6)

An 18-year-old man has recently been arrested on 1 count of making criminal threats and 1 count of distributing pornographic materials to minors. Local law enforcement agents received an anonymous tip in conjunction with the case in which an eyewitness claims to have seen the teen threatening to sexually assault and harm several young males in the area. A search of his residence yielded evidence of sexually inappropriate text messages sent to minor children.

Distribution of pornographic materials is not illegal in and of itself, unless those images are given to a person under the age of 18. Then, it becomes a crime. According to the California Penal Code 647.6 (often referred to as ‘annoying or molesting a child’), any person who behaves in such a way that is sexually motivated and irritating or disturbing toward a minor child.

Interestingly, just as in the case above, a person need not actually touch a child in order to be in violation of this particular section of the law. In fact, even speaking lewdly to a child could be considered illegal by the definition given here. In sum, any lewd behavior towards a minor could be considered a crime under this broad definition.

Normally, cases such as the one above are treated as misdemeanors and a conviction could mean up to 1 year in county jail and a $5,000 fine. However, in some circumstances, namely if the crime has been committed after the perpetrator entered a residence without the resident’s consent, it becomes a California “wobbler;” this means that it is up to the prosecutors involved in the case to determine, dependent upon the specific facts of each case, whether they will treat it as a misdemeanor or as a felony. If convicted of a misdemeanor charge of annoying or molesting a child in an inhabited dwelling, an individual may expect to spend the same amount of time in jail as listed above. However, if prosecutors determine that the case will be treated as a felony, then the penalties rise to 1 year in state prison. There are further, and harsher, penalties if you have a prior conviction for the same crime. Additionally, this crime will automatically be treated as a felony if you have a prior felony conviction for other violent sex offenses, such as the rape of a minor under the age of 16 (CA PC 261), lewd acts with a child (CA PC 288.5), or continuous sexual abuse of a child (CA PC 288).

After 14 Years, Former Fremont Elementary Teacher Arrested for Child Molestation (CA Penal Code 288)

14 years ago, a Fremont elementary teacher from Hayward was accused of molesting a child. However, he was not arrested until just recently. The 52-year-old man was working at Blacow Elementary and Azeveda Elementary before having allegedly sodomized a child on more than one occasion, oral copulation of a minor, and continually sexually abusing a minor child. 14 years ago, 2 male students accused the man, yet he suddenly disappeared before he could be arrested. Since then, he has been on the run and was eventually discovered residing in the Brooklyn Heights neighborhood in Los Angeles.

California law is quite clear when it comes to any kind of lewd act performed on a minor (CA Penal Code 288). Yet, so-called ‘sodomy laws’ also apply in the case above (CA Penal Code 286). Not that long ago, any anal copulation was criminalized by most states, however, this is no longer the case. There are only a very few situations in which there are acts of sodomy that are illegal: 1) when someone is forced into sodomy and 2) when sodomy is performed on a minor child (CA Penal Code 286(b)(1), 286(b)(2), and 286(b)(3)).

When a child is involved, penalties for illegal sodomy can be particularly harsh. For example, the minimum punishment for engaging in an act of sodomy with a child under the age of 18 is at least 1 year in state prison. However, if the minor in question is under the age of 16, the crime is considered a felony and could face up to 8 years in state prison. If force or violence was used, consequences rise to up to 13 years in state prison. Each case is treated differently, and punishment depends wholly on the allegations involved.