California Law
California Criminal Law: Felonies & White Collar Crime
- Criminal Law: Felonies & White Collar Crime
Criminal Law: Felonies & White Collar Crime
This chapter outlines how the criminal justice system operates and describes the most serious criminal violations felonies and white collar crime. It also includes information about the rights of persons accused of crimes and the rights of crime victims. Domestic abuse and protective orders are covered in the Family Law Chapter. Criminal procedure is covered in the Process of a Lawsuit Chapter. Private causes of action that result from criminal conduct are covered in the Personal Injury Chapters. Finally, misdemeanors and driving-under-the-influence violations are covered in the Criminal Law: DUI & Misdemeanors Chapter.
Criminal Codes
Criminal law defines conduct that is prohibited by the government and the range of penalties that can be imposed for violating these prohibitions. Persons who violate criminal laws incur penalties ranging from fines to imprisonment or, in some states such as California, execution. All crimes are defined by statutes. These statutes are collected and organized into books of rules known as criminal or penal codes. In addition to the California Penal Code, which applies only in California, the federal government has a criminal code that regulates certain crimes nationwide. Most criminal activity violates either a state law or a federal law, not both; an important exception is drug crimes, which can be prosecuted in either state or federal court or both.
Every crime is defined by a list of elements. In a criminal trial, the prosecutor attempts to prove all the elements of the crime the person is accused of committing. If all elements are proven, the judge or the jury finds the person guilty of the crime. Even for minor criminal violations, however, the accused may not be found guilty unless the jury or judge finds him or her guilty "beyond a reasonable doubt."
Attempt, Conspiracy, Aiding and Abetting
Anyone who, with intent to commit a crime, takes a substantial step toward committing the crime may be guilty of attempt to commit a crime. Merely thinking about committing a crime, or even preparing for it, is not a crime. There must be a substantial step. For example, if someone buys a gun with intent to kill another person, the act of buying the gun is mere preparation. However, going to a person's house after buying a gun with intent to kill the person may be a substantial step that is enough to charge a person with attempting to commit a crime.
The law of conspiracy and the law of aiding and abetting are other general doctrines that apply to a wide range of offenses. A conspiracy is an agreement between two or more persons to commit a crime. For example, if three people conspire to commit murder, at least one of them takes action to further the conspiracy, and the murder actually occurs, they all can be charged with both conspiracy and murder. Even if a conspirator backs out of the conspiracy, but the other conspirators commit the crime, all conspirators may be criminally liable if the acts were reasonably foreseeable.
A person who intentionally aids or advises another in committing a crime may be guilty of aiding and abetting, and may be criminally liable for the acts of the other person, as well. Thus, if someone intentionally advises another how to commit robbery and lends the robber a car to use in the getaway, both people are equally liable under the law.
Offenses
Criminal codes penalize a variety of activities. Generally, an offense is any violation of the California Penal Code. The Penal Code divides offenses into three major categories: felonies, misdemeanors, and infractions. Felonies are crimes for which a person may be sentenced to imprisonment in the state prison or to death. The most violent crimes, such as murder and rape, as well as so-called white collar crimes, generally are felonies under the California Penal Code. Misdemeanors are lesser crimes for which a person may be sentenced to imprisonment in a jail. Under the law, many crimes are misdemeanors on the first offense, but become felonies on the second offense. Infractions are not punished by imprisonment at all. Children under the age of 14 are not capable of committing crimes according to California law, unless the prosecutor presents clear proof that the child had knowledge of the wrongfulness of his or her action.
Felonies
Homicide and Suicide
Homicide is the unlawful killing of another human being. There are two types of homicide: murder and manslaughter. Most forms of homicide are felonies.
Murder is the unlawful killing of another with malice (evil or hatred) and with the specific intention to kill. Murder is divided into subcategories by degree of seriousness. Murder of the first degree is killing someone with malice and with the deliberate and premeditated intent to kill. The willful, deliberate, and premeditated killing usually is characterized by torture, lying in wait, or using poison or an explosive device specifically to kill a person. If a person kills while committing arson, burglary, lewd acts against children, rape, or robbery, the court will decide the person had malice and premeditation, and will rule the person guilty of first degree murder. Murder of the second degree is similar to murder of the first degree, except the element of premeditation does not have to be proven. If a person kills while committing a felony that is inherently dangerous to human life other than arson, burglary, etc. the person will be found guilty of second degree murder. For example, if the defendant furnishes heroin to someone who uses it and dies of an overdose, the defendant probably will be charged with murder in the second degree. Under the law it is assumed that if the defendant had the specific intention to furnish the heroin, he or she had malice enough to be charged with murder.
Manslaughter is defined as killing a person without having malice. Like murder, there are different degrees of seriousness of manslaughter. Voluntary manslaughter means the person had an intention to kill, and was provoked to commit the crime during an argument or the heat of passion. Involuntary manslaughter does not include the element of an intention to kill. Vehicular homicide is defined as manslaughter committed by driving a vehicle. For example, a person who commits a grossly negligent act while driving a car under the influence of alcohol, which results in someone being killed, would be charged with vehicular homicide.
Suicide is taking one's own life. Suicide and attempted suicide no longer are crimes in California. However, it is a felony for someone deliberately to aid, advise, or encourage another to commit suicide.
Assault and Battery
Under California law, assault and battery are separate crimes, although often they are charged together. Assault is defined as an unlawful attempt to violently injure another person. Battery means unlawfully and wilfully using force or violence against another person. Other laws make both assault and battery more serious crimes if the offender uses a firearm or other deadly weapon, commits the crime with the intent to commit mayhem or rape, or if the assault or battery is against a government officer or an elderly person. Under California law, transmission of HIV may constitute an aggravated battery.
Rape
Criminal sexual assault also known as rape is a felony that carries with it severe penalties. Rape is sexual intercourse against a person under one of the following circumstances:
- The victim is unable to give legal consent due to a mental disorder, developmental disability, or physical disability
- The victim is unable to resist because the person is unconscious, intoxicated, or anesthetized, and the assailant knew or should have known of the victim's condition
- The action is against the person's will by using force, violence, menace, duress, or fear of immediate injury, or by a threat to retaliate in the future
- The defendant is a public official who acts against the victim's will by a threat to arrest or deport the victim
California law specifically makes it unlawful for a man to rape his wife.
Aggravated criminal sexual assault is criminal sexual assault against a child under the age of 14, and who is ten or more years younger than the defendant. Acting in concert with others is another form of aggravated rape.
Sexual battery is a crime similar to rape, and is defined as touching the intimate part of another person who is restrained and without the person's consent. For example, sexually touching a person who is institutionalized and seriously disabled is sexual battery.
Kidnapping
Kidnapping is forcibly, or by using fear, taking or holding or detaining a person, and carrying the person from one place to another. Kidnapping by persuading, enticing, or seducing a child under the age of 14 with misrepresentations or false promises also constitutes criminal kidnapping under California law. The California kidnapping law also specifically prohibits kidnapping of any person adult or child by making misrepresentations or false promises, if the intent is to sell the person into slavery or involuntary servitude or to use or employ the person for one's own purposes. Kidnapping for ransom or extortion, and kidnapping during a carjacking, are more severe crimes that carry additional penalties. All forms of kidnapping are felonies.
Stalking
Stalking is the crime of maliciously, willfully, and repeatedly following or harassing a person, and making a believable threat in order to make the person afraid for his or her safety or the safety or his or her family. The harassment may be any behavior that annoys, torments, terrorizes, or alarms the victim, but it must be specifically directed at the victim to serve no other legitimate purpose except to cause fear or bother him or her. Depending on the circumstances, stalking may be punished as a misdemeanor or a felony. If there is a protective order in effect against the stalker, or if the accused has been convicted of stalking previously, the stalking is a felony. Protective orders are described in detail in the Family Law Chapter.
Hate Crime
California law prohibits hate crime, which is defined as violence, intimidation, or threat of violence against a person due to age, ancestry, color, disability, gender, national origin, political affiliation, position in a labor dispute, race, religion, or sexual orientation. For example, if a group of white people assault a black person, and during the assault use racial insults, they may be charged with committing a hate crime as well as criminal assault. A person found guilty of a hate crime receives additional punishments. If a person is murdered because of his or her color, nationality, national origin, race, or religion, the defendant will receive the death penalty. If a person commits a felony that also is a hate crime, he or she will receive an additional one to three years of imprisonment in the state prison. Some misdemeanors become felonies if they are committed based on the victim's race, religion, etc. If people act in concert with others to commit a hate crime, they receive even harsher additional penalties.
Federal Drug and Gun Laws
Federal laws contain harsh penalties for distributing controlled substances, especially if firearms are even remotely involved. For example, any person who possesses with intent to distribute five grams of crack cocaine is subject to a mandatory sentence of five years without parole. If a gun is available for use or is being carried during a drug transaction even if it is not used a mandatory five-year sentence must be imposed consecutively to a conviction for the drug offense. Thus, the person with five grams of crack cocaine with intent to distribute would receive a mandatory ten-year sentence without parole if there is a gun on the premises. In most circumstances, federal judges cannot depart from these mandatory sentences. Penalties for controlled substance offenses become even harsher as quantities of the contraband increase.
Crimes Causing Harm to Property
Depending on the value of the property involved, as well as the level of violence, most property crimes are felonies in California. The legal definition of theft is the felonious stealing, taking, carrying, leading, or driving away of the personal property of another, or fraudulently appropriating property that has been entrusted by the other. This definition is much broader than what most people think of as theft. It includes writing bad checks, embezzlement, keeping found property without making a reasonable attempt to find its rightful owner, misusing trade secrets, unlawfully tapping into cable television services, obtaining telephone or telegraph services by fraud, or obtaining the labor or services of another person by fraud.
Burglary is entering into a building, dwelling, or vehicle with the intent to commit theft or a felony there. Not only is it burglary to enter a house unlawfully with the intent to steal money or property, but it is also burglary to enter with the intent to commit a felony such as arson or murder. Robbery is feloniously taking personal property from another person or in the person's immediate presence, by using force or causing fear.
White Collar Crime
Although there is no fixed definition of white collar crime, a number of nonviolent crimes frequently are grouped together as white collar crimes. The term "white collar crime" generally is used to describe crimes that have cheating or dishonesty as their common basis. These crimes typically are committed by professionals or entrepreneurs under cover of legitimate business activity. Such crimes may be difficult to prosecute because of their complexity. Often they carry lesser penalties than other crimes because they are not associated with violence. However, defendants convicted of white collar crimes may incur enormous fines, be ordered to pay restitution, or spend time in jail. Today, there is a trend toward stricter punishment for white collar crimes, as people recognize the financial damage white collar criminals inflict on society.
As a practical matter, it is impossible to describe every activity that fits within the definition of white collar crime, because white collar crime takes many forms. Some criminal actions are prohibited by specific laws narrowly drawn to outlaw particular activities. Other actions are not covered by specific laws but instead are prosecuted under one or more "catch-all" laws criminalizing dishonest behavior generally.
Bribery
Federal law and California law both prohibit bribery. The purpose of most bribery statutes is to prevent people from seeking preferential treatment from public officials and to prevent public officers from using their offices for personal gain. Specifically, if a government official is offered or seeks anything of value for himself or herself in exchange for performing an official act, a fraudulous action, or any action in violation of his or her official duty, the elements of bribery may be met.
Computer Crime
Computer crime is an area of the law in which the government appears to be playing catch-up with the growth in new technologies. Some variations of computer crime are so new that there are no specific laws to address them, and general laws in existence do not seem adequate to proscribe the particular illicit activities.
Generally, conduct specifically outlawed by federal statute includes an intentional or knowing access of a computer to obtain confidential national security information, financial information of a financial institution or of a credit card issuer, information of a federal department or agency, or to commit fraud.
The California Penal Code also includes provisions covering computer crime. It is illegal to knowingly introduce a contaminant into a computer, computer system, or computer network. In addition, it is against state law to knowingly and without permission access a computer and damage, delete, destroy, or use any data, computer, computer system or computer network. It is unlawful to use computers as part of a scheme to defraud or to wrongfully control or obtain money, property, or data. A violation of this law subjects the offender to a range of sanctions depending on the specific violation, the value of computer services used, the amount of the injury, and whether it is the defendant's first violation of the statute. The maximum punishment is a fine not exceeding $10,000, imprisonment in the state prison for three years, or both.
Embezzlement
To embezzle means to take another's money and property through abuse of an official job or position of trust. Embezzlement can take many forms. An accountant might use sophisticated methods to falsify records and skim profits. A bank teller might walk home with an extra 20 dollars from his or her drawer. Both of these actions constitute embezzlement.
False Statements
The crime of making false statements is not specific to white collar criminals, but this crime is broad enough to encompass activities that might not be unlawful if not for associated false statements. To convict someone of false statements requires proof of a statement made willfully and knowingly that contains a false material fact or conceals a material fact.
Fraud
Fraud is intentionally lying in order to induce someone to rely on the lie and part with something of value. Like embezzlement, fraud can be either complex or simple. The federal government has three general anti-fraud statutes for mail fraud, bank fraud, and wire fraud. Mail fraud has two elements: (1) a scheme devised or intending to defraud or for obtaining property or money by fraudulent means, and (2) using the mails in furtherance of that fraudulent scheme. The "scheme to defraud" element of mail fraud is deliberately broad. It encompasses a wide variety of criminal activity, including credit card fraud, securities fraud, medical drug fraud, and frauds based on political malfeasance. Because the mail fraud statute uses such broad language and because it is relatively easy to prove, mail fraud is one of the most common charges brought by federal prosecutors. Charges of mail fraud frequently are made even in cases in which more specific crimes have been charged.
The federal wire fraud statute is similar to the mail fraud statute, but requires an interstate or foreign transmittal of a communication by wire, radio, or television. The federal bank fraud statute criminalizes the conduct of any party who "knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, by means of false or fraudulent pretenses, representations, or promises."
Obstruction of Justice
Obstruction of justice is interference in one of the three branches of government. Obstruction of justice can take many forms, including assaulting a process server, improperly influencing a juror, stealing or altering a record of process, and obstructing a criminal investigation by officers of a financial institution. Picketing, parading, or using sound amplification devices in front of a courthouse, a building or residence occupied by a judge, juror, witness, or court officer may be prosecuted as obstruction of justice.
Perjury
Federal perjury laws penalize anyone who willfully or knowingly makes false statements under oath. The sworn statements may be written or oral and need not be made in court; a person may perjure himself or herself in deposition or written testimony. A related law against subornation of perjury makes it illegal for anyone to procure another person to commit perjury.
Tax Crimes
Often, people charged with other white collar crimes are accused of committing tax crimes also. Failing to file a tax return or filing a false tax return is a crime, as is interfering with the administration of the internal revenue laws. Specific laws prohibit obstruction, extortion, or bribery with regard to a tax official.
Defenses and Punishment
In some criminal trials, the prosecutor proves all the elements of a crime but the person accused is not punished because he or she has a valid defense.
Self-defense sometimes is used as a defense. The general rule for self-defense is that a person may use any amount of force except deadly force that he or she reasonably believes is necessary to prevent immediate unlawful harm to a person. Using deadly force is permissible only when it reasonably appears to be necessary to avoid immediate death or serious injury to a person, or to prevent the commission of a felony in the actor's dwelling. If a person claims that he or she acted in self-defense, the prosecutor must prove beyond a reasonable doubt that self-defense was not the reason for the crime.
By itself, intoxication is not a defense to a crime. In rare cases, intoxication works like a defense, if there is proof that the person accused of the crime was unable to form the necessary intent to commit a crime. Someone who is intoxicated may not be found guilty of a crime that requires he or she acted intentionally, but the intoxicated person may be guilty of another crime that does not require intentional actions.
In the area of white collar crime, the same defenses are available to defendants as those available in crimes generally. Some people accused of white collar crimes also claim entrapment by the government; they argue they were induced to act, and would not have acted unlawfully otherwise. Another common defense by businesses is that a particular businessperson was acting alone, without the authority of the company behind him or her. Businesses further argue that once it was discovered that an officer or employee was acting unlawfully, the business acted immediately to resolve the situation. Sometimes a business avoids criminal liability altogether if it shows that it took proper action to correct a situation as soon as managers were made aware of a problem.
Felonies and white collar crimes carry the strictest punishments, such as lengthy imprisonment, heavy fines, or even death. Federal sentencing guidelines contain a method for calculating fines to be paid by organizations that commit crimes. Businesses that are found guilty of operating for a primarily criminal purpose incur fines equal to their total assets.
California also has laws that allow the authorities to seize property connected with the commission of a crime. For example, a person charged with violating laws connected with controlled substances must forfeit the substances as well as the raw materials used to make the drugs, vehicles and property used to further the crime, and any money or other proceeds from the sale of the controlled substances. Similarly, any person who is found guilty of murder, manslaughter, assault with a deadly weapon, or a similar crime from or involving a motor vehicle and by using a firearm, must forfeit the vehicle for sale by California authorities.
Crime Victims' Rights
Crime victims have rights in the California criminal justice system. For example, under California's constitution, the Victims' Bill of Rights provides for counseling, assistance, and restitution for victims. Victims of felonies have the right to speak at sentencing and parole hearings, and to know that criminals who commit felonies will be detained, tried, and punished.
Some crime victims also have a right to compensation for the crimes committed against them. This means that a crime victim may receive compensation for certain expenses or losses, such as medical expenses or loss of support if the crime victim becomes unable to support dependents. There are requirements that must be met for a victim to get reimbursement. A victim must cooperate in the investigation and prosecution process. He or she must file a claim for compensation with the California State Board of Control, Victims of Crime Program within one year of the crime. In some cases, a court will order the defendant to pay compensation to the victim directly. This is called direct restitution.
Another option for a victim of crime is to seek compensation directly by suing the offender in civil court. This option is discussed more fully in the Process of a Lawsuit Chapter.
Resources
Stanley S. Arkin, et al., Business Crime: Criminal Liability of the Business Community (Matthew Bender, New York, NY 1994).
For information or to order Your Right to Freedom From Violence, a free pamphlet, contact the California Department of Fair Employment and Housing, 322 First Street West #2126, Los Angeles, CA 90012-3112; 2000 O Street #120, Sacramento, CA 95814, 1-800-884-1684.
The Crime Prevention Center of the California Attorney General's Office, Public Inquiry Unit, 1300 I Street #1101, Sacramento, CA 95814, (916) 322-3360, offers a free booklet entitled Crime Victims' Handbook.
A crime victim can file a claim for compensation with the California State Board of Control, Victims of Crime Program, P.O. Box 3036, Sacramento, CA, 95812-3036, (916) 322-4426 or (800) 777-9229.
The following national organizations have information about preventing and prosecuting crime, or offer assistance to victims:
- National Organization for Victim Assistance, 1757 Park Road N.W., Washington, DC 20010, (202) 232-6682.
- Victims of Crime Resource Center, (800) VICTIMS (842-8467).
Contact the State Bar of California, 555 Franklin Street, San Francisco, CA 94102-4498, (415) 561-8200, for a free pamphlet called What Should I Know If I Am Arrested?.