Jamahl Kersey June 9, 2016 No Comments

California Law: What Is Needed to Be Charged with 2nd Degree Rape?

Every state has its own laws surrounding sexual assault and rape. California is no exception, having its own requirements for 2nd degree rape charges. Whether you believe you may be facing such charges or you simply want to be informed of the laws in your state, understanding the difference between different types of sexual assault can be helpful.

What Is Rape in California?

Generally, rape is a form of sexual assault that typically includes forced penetration. This is no different in California, except that there are different degrees of the crime.

In California, rape is considered sexual penetration by means of force, violence, duress, injury, menace, or fear. In addition to sexual penetration, this also applies to oral copulation and sodomy. This crime is considered a felony in the first degree, but the second degree varies between misdemeanor and felony.

What is 2nd Degree Rape in California?

Second degree rape and first degree rape differ in the type of violence or duress that occurs before or during the act. In fact, there are also different types of crimes that may qualify as 2nd degree rape. Each circumstance may be examined differently from another.

In California, you may be charged with 2nd degree rape if you engage in intercourse with an individual under the age of 18 and you are less than three years older than this person. In this case, the crime is often considered a misdemeanor. This type of case, often called “statutory rape,” commonly affects young couples when one party is over 18 and the other is still a minor.

If you are more than three years older than the individual under 18, you may be charged with a misdemeanor or felony depending on the court’s decision.

If you are age 21 or older and engage in sexual intercourse with a minor under the age of 16, the crime may be considered a misdemeanor or felony.

Evidence of 2nd Degree Rape

One of the first things that prosecutors will look for in any rape case is evidence of freely given consent. If there is doubt that the consent was given freely, evidence of such will be shown in court.

First, the court will look at the age of the victim. Legally, minors are not generally considered able to provide consent for sexual interaction. The court also considers the mental and physical capacities of the victim. If the victim is considered disabled, he or she may not be able to provide consent according to the law either.

The court will also look at the relationship between the victim and the defendant. For instance, a person in a position of power could be considered intimidating to an employee.

It is not necessary for the threat of violence or force to be explicit in 2nd degree rape. For instance, a teenager may experience duress from the suggestion of intercourse by an adult in a superior position. The court will examine the way in which the circumstances came about.

Additionally, a prior existing relationship does not deter the court from pressing charges of 2nd degree rape.

Second Degree Rape Charges Are Serious

Punishments for 2nd degree rape include up to one year in jail and up to four years in prison. This is for the first offense, but additional offenses can lead up to eight years in prison. On probation, the offender may be required to pay for counseling for the victim as well.

The best way to deal with charges is to hire a defense lawyer. Plus, the laws do occasionally change. Do you need a lawyer in a sexual assault case? Contact us to learn more about your options.

Jamahl Kersey June 1, 2016 No Comments

Physical Discipline Vs. Domestic Violence

Domestic violence is defined as physical violence that occurs between individuals in a family unit or those in a dating or other romantic relationship. The activities that fall under the category of “domestic violence” are wide and varied, but the focus is on activities that cause harm to the individual against whom violence is committed. What many parents find themselves wondering, however, is, “When parents physically discipline their children, does this amount to domestic violence?

The Short Answer

Parents who physically discipline their children are not automatically committing an act of domestic violence. There are several forms of physical discipline that are legally acceptable when dealing with a child, and parents shouldn’t worry that they’ll be charged with domestic violence when physical discipline is necessary to control a wayward child. Many parents believe that failure to appropriately discipline their children is worse than disciplining too harshly, and some children simply don’t respond to time-outs or groundings. Discipline is different from violence and does not fall into the same category.

The Blurred Line

The fact that typical discipline isn’t domestic violence doesn’t excuse parents from using excessive force when disciplining their child. There are, of course, several very obvious signs that discipline has crossed the line. These include:

  • Visible or excessive bruises on a child caused by discipline, especially those that clearly have the imprint of a hand or object
  • Broken bones
  • Any damage to the head, especially damage resulting in concussion
  • Trauma inflicted by a sharp object
  • Malnourished children who have been starved as a form of discipline
  • Burns
  • Patchy balding from pulled hair
  • Teeth missing in an abnormal pattern
  • Isolation or an unwillingness to interact with others due to fear of the parent

Domestic violence might also be identified in a child who routinely flinches away from an angry adult or who expects severe physical punishment for small infractions. It’s also important to note that parents should moderate punishment based on infractions: extreme physical punishment for small mistakes or any type of violence that is not part of a punishment can also be viewed as domestic violence.

Unfortunately, there isn’t a clear line between domestic violence and abuse and mere physical discipline. What type of discipline is considered acceptable? Most people would agree that a spank on the bottom or a smack on the hand is appropriate discipline, but what about smacking the mouth of a smart-mouthed child? Determining the difference between discipline and domestic violence is much more difficult in this case.

Defining the Line

Each state has a different definition of the line between domestic violence and discipline. Some don’t make the guidelines particularly clear due to a desire to leave most basic discipline decisions to the parents. Others have stricter guidelines. Typically, however, the distinction between domestic violence and discipline comes down to a handful of questions.

  • What was the intent of the action? An abuser will tend to act in anger, while a parent disciplining a child will punish in order to create better behavior in the future.
  • Is the child endangered by the action? That is, does it cause unnecessary or excessive physical harm? If not, the action was discipline, not violence.
  • Does the force used take into account the child’s age and size? An action that would be considered violent against a small child is more likely to be discipline against an older child.

Many times, the question of domestic violence versus physical discipline comes down to the personal determination of the individual who reports the violence, the investigating parties, and, ultimately, a juror. While reasonable physical discipline is never the same thing as domestic violence, discipline that crosses a line may be seen that way. If you’re struggling with a domestic violence charge as a result of disciplining a child or looking to understand the legal ramifications of violence committed against your child, contact us today. Experienced legal representation is critical to ensuring that you are protected to the fullest extent of the law.

Jamahl Kersey May 26, 2016 No Comments

Racial Profiling: The Ugly Truth About an Advanced Nation

Though some people choose to not focus on the negative aspects of society, it is impossible to deny their existence. Racial profiling, for example, is a problem experienced each day in the United States. Efforts have been made in an attempt to abolish the morally wrong action, but unfortunately, not many consequences exist for those who racially profile. In 2014, the Obama Administration attempted to restrain the racial profiling so heavily seen in the country, but there is only so much litigation that the justice system can bring against offenders. There are two sides to every story, but an unfavorable party tends to walk away as a result of lack of evidence, witnesses, and the whole he said, she said argument. Racial profiling is a common offense experienced in a multitude of situations. The most common are as followed:

Shopping

It is widely known that retailers in America profile African-Americans, Hispanics, and those of Middle Eastern decent far more than they do Caucasian shoppers. Whether it is Wal-Mart, Target, or the upscale boutiques on Rodeo Drive, a person of color is likely to be followed, stopped, and perhaps even accused of stealing. The general hospitality a store is supposed to give to their shoppers is rarely experienced by minorities. To make matters worse, retailers often admit that they racially profile, but attempt to justify it with statistics that do not even exist.

Traffic Stops

Black drivers are twice as likely to be arrested during a traffic stop than white drivers. Native Americans and those of Middle Eastern descent are the most likely to be stopped during traffic hour. While the Attorney General has attempted to educate officers across the nation that this profiling is unethical, wrong, and unacceptable, it still happens each day.

Investigations

Being at the wrong place at the wrong time is an unfortunate part of life. If you are at a party, for example, and the cops have evidence allowing them to obtain a search warrant under the suspicion of illegal activity taking place at the residence, an innocent white person will be simply patted down. A person of color, however, is likely to be intensively searched and then hauled in for further questioning despite them being innocent.

A Day at the Park

Unfortunately, racial profiling extends to children. Stories have surfaced of black children being arrested and, when asked why, a simple explanation that they fit the description of a criminal is given. Ava Greenwell discusses her nightmare that resulted in the wrongful arrest of her thirteen-year-old African-American son who was riding his bike wearing the wrong outfit that day, apparently. The grounds for arrest? His cargo shorts fit a description of a burglar in the area.

Who Gets Hired?

Have you ever been curious as to why job applications ask for your race? Granted, you understand that they need a background check to discover your criminal history, but the race card seems a little redundant. A white male with a record is far more likely to be hired for a job than a black male with no criminal history. To make matter worse, employers are beginning to assume your race just by reading your name.

Yolanda Spivey is a black woman with an extensive and impressive educational background. Upon trying to find a job, Yolanda realized that she was unable to find employment despite her education and experience. As her suspicions arose, she kept the same education and work history on her application, but changed her name to Bianca White. She applied to the same jobs that rejected her, and to her surprise, she got called in for interviews. There is no denying that certain employers racially profile with these examples.

To conclude, not all retailers, police officers, or employers are racist. Very few of them actually are, in fact. However, racial profiling statistics are far too high for a nation that is supposed to be so advanced and tolerant. Failure to live up to our title of being a tolerant nation will result in the regression of our very society.

For more information on racial profiling, please contact us today.

Jamahl Kersey May 17, 2016 No Comments

What Everyone Should Know About Search and Seizure Laws

As an attorney, I am frequently asked about whether a particular police search action was legal, or if the police had the right to take something owned by my client from them.

Whenever this question comes up, it is helpful to have a basic understanding of the rights each of us has under the U.S. Constitution.

The fourth amendment to the U.S. Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This applies to all law enforcement officials, including state and local police, and F.B.I. agents.

So, in order for a police search to be constitutionally valid, a judge must have issued a valid search warrant (upon probable cause, supported by oath or affirmation), unless there is a valid exception to the warrant requirement (more on this later).

Let’s break this down a little further:

Search warrants: requirements

A search warrant must be issued by a federal or state judge, and gives the police the right to search for items that may be evidence of a felony or evidence that a particular person committed a felony.

As the constitution tells us, search warrants must specifically describe both the area to be searched and the item(s) being searched for.

Search warrants: validity

However, just because a search warrant was issued does not mean that it is a valid warrant!

In some cases of police misconduct, a police officer will intentionally mislead a judge about the facts to get the warrant. In other cases, a warrant might not be specific enough about the area being searched or the item(s) being sought.

In still other cases, warrants may be invalid because the issuing judge was biased in some way.

Search warrants: “knock-notice” rule

In California, even with a valid search warrant, the police can only use force to carry out the search warrant if, after telling you about their purpose and intent, you refuse to let them enter.

Police may overstep their authority in this area if they fail to state their purpose for being there, if they use force while stating their purpose or if they enter your home or car while the warrant is being issued.

Exceptions to search warrant and knock-notice requirements

If an exception exists, the police do not need to obtain a search warrant from a judge before conducting a search. Valid exceptions include:

  • Inspection searches at international borders
  • Searches/seizures done with voluntary consent
  • Searches/seizures incident to a lawful arrest. This includes situations where the police are searching for criminal evidence that may otherwise be destroyed, or situations where there may be weapons that could be used against the police
  • The “automobile exception”, where the police have probable cause to believe there is criminal evidence in a vehicle
  • The “plain view” exception says that, while police are conducting a search that is otherwise legal, they can search obviously incriminating other evidence that is in plain view
  • In emergency situations where a search is necessary to prevent serious property damage or physical harm, or to locate a fleeing suspect
  • Searches where there is otherwise no reasonable expectation of privacy. You generally do have an expectation of privacy in your home, your cell phone, your computer, a hotel room or in a tent. You generally do not have an expectation of privacy under the law when it comes to public places, things you have thrown away or otherwise abandoned, in the contents of a stolen vehicle, or the contents of a vehicle in which you do not have any ownership interest.

The “Exclusionary Rule”

If you and your attorney believe you were the victim of an unlawful search or seizure, your attorney may invoke the “Exclusionary Rule” to ask that the evidence be excluded in your case. If the evidence is successfully suppressed, it cannot be used against you in a criminal trial.

The Exclusionary Rule applies both to evidence found during a search that wasn’t valid and to evidence that was discovered indirectly through an illegal search. This is sometimes referred to as the “fruit of the poisonous tree.”

Conclusion

You have protections under the U.S. constitution, but a determination about whether a police search and seizure action was valid will depend on a variety of circumstances, as described in this article.

You deserve to have an experienced criminal defense attorney behind you every step of the way. If you believe you may have been the victim of an illegal search and seizure action, contact us today.

Jamahl Kersey May 13, 2016 No Comments

Common Tactics Police Use to Get Confessions From Suspects

You’ve probably seen old movies of people being tortured so that they’ll confess to crimes they may have committed. In the past, suspects of crimes had to undergo third-degree abuse by being deprived of water, food and sleep in an effort to get them to confess. But today, instead of using these harsh techniques, more sophisticated methods are used.

Getting people to confess to the police about crimes they’ve committed is not easy. To obtain confessions, police officers use a combination of different techniques. Here are some of the main tactics police officers use to get confessions from suspects. 

The Reid Method of Interrogation

A popular method known as the Reid technique is often used in making people confess to crimes. This tactic, which is the most widely used interrogation method, entails questioning suspects for evaluating their credibility. Instead of using a question-and-answer format, the interrogator speaks compassionately in an effort to make a suspect more at ease so that it’s more likely he or she will tell the truth.

To do this, the interrogator tries to present reasons for why a crime may have been committed. In other words, interrogators try to put themselves in the shoes of suspects. The Reid technique is designed to build rapport with suspects. The interrogator is specially trained to observe a suspect’s body language in detecting signs of anxiety and lying. Nine steps are involved in this technique, although many of these steps overlap.

The Reid technique is often effective in getting information on a crime for suspects who probably would have been unwilling to be truthful. On the other hand, some critics of this tactic contend that it can lead to innocent people giving false confessions.

The PEACE Method

An increasing number of police officers, in countries such as Denmark, the United Kingdom and New Zealand, use a relatively new tactic called “The PEACE method.” This procedure involves gathering a lot off information, rather than simply getting confessions from suspects. The letters in “PEACE” stand for preparation and planning; engage and explain; account; closure and evaluate. It’s similar to a journalistic method, yet it’s extremely straightforward.

The method works on the assumption that the more untruths that suspects tell, the harder it is for them to remember what they’ve said. It’s based on the idea that just a single conflicting detail will eventually destroy a liar’s entire web of fabrications.

Misconception

Can police officers ever lie? That’s what many people still believe, but this is an old urban myth. In fact, lying is another technique that’s used in getting confessions from suspects. Actually, there isn’t any law that says that police officers are restricted to always telling nothing but the truth.

Considerations and Warnings

  • There are some groups of people who are more at risk for making false confessions. These include mentally challenged individuals, juveniles and children.
  • Law enforcement officers are not allowed to make threats to suspects, such as threatening to forbid them to see their family if they don’t confess. Furthermore, police cannot say that if a suspect confesses, he or she will be charged with a less severe crime.
  • Whenever officers interact with people, informal questioning can take place. For example, let’s say you’re stopped by a police officer, and you’re unsure of the reason why. Always assume that you may be suspected of committing an offense.
  • When officers question suspects at police stations, they typically use the Reid technique.
  • If you’ve been charged with or accused of a crime, you should never offer a statement to the police if there’s no attorney present with you. You don’t want to say anything that might incriminate you later.
  • Simply state that you don’t want to give a statement, and that you’re using your right to remain silence. Additionally, request a criminal defense lawyer.

A qualified and highly experienced criminal defense lawyer can help you in determining if you need to say anything at all. If speaking with law enforcement is necessary, your lawyer can advice you on what to say, as well as investigate your case. Don’t hesitate to contact us and learn more about our wide range of legal services.