Criminal Defenses – The Top 17 Ways to Fight The Charge

Legal References:

1. California Penal Code 26 PC — Persons capable of committing crime; exceptions. (“All persons are capable of committing crimes except those belonging to the following classes… Five–Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence… ”)
   See also California Jury Instructions-Criminal. CALCRIM 3404 Accident.
2. People v. Odom (1991) 226 Cal.App.3d 1028 summarizes California’s definition of criminal negligence.  (“[“Criminal negligence” refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for [human life] [danger to human life] or to constitute indifference to the consequences of that conduct. The facts must  be such that the consequences of the negligent conduct could reasonably have been foreseen and it must appear that the [death] [danger to human life] was  not the result of inattention, mistaken judgment or misadventure but the  natural and probable result of aggravated, reckless or flagrantly negligent  conduct.]”)
3. California Vehicle Code 23152 VC — Driving under the influence (DUI). (“(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”)
4. California Penal Code 26 PC — Persons capable of committing crime; legal defenses. (“All persons are capable of committing crimes except those belonging to the following classes… Six–Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”)
5. People v. Steele (1988) 206 Cal.App.3d 703, 706.(“The [California  legal] defense of duress, unlike the necessity justification, requires that the  threat or menace be accompanied by a direct or implied demand that the defendant commits the criminal act charged.”)
6. California Penal Code 187 —  Murder. (“(a)  Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)
7. People v. Anderson (2002) 28  Cal.4th 767, 770. (“… fear for one’s own life does not justify killing an innocent person. Duress is not a [California legal] defense to murder.”)
8. See same at 784. (“On a final point,  we note, contrary to the Attorney General’s argument, that duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. (See People v. Anderson (1991) 233  Cal.App.3d 1646, 1666-1667, fn. 18, 285 Cal.Rptr. 523; Perkins & Boyce,  Criminal Law, supra, ch. 9, § 2, pp. 1058-1059; LaFave, Criminal Law, supra, § 5.3(b), pp. 468-469.) If one is not guilty of the underlying felony due to duress, one cannot be guilty of [the California]  felony murder [rule] based on that felony. Here, for example, the court instructed the jury that duress could be a defense to the kidnapping charge. It also instructed on felony murder with kidnapping as the underlying felony. If the jury had found the defendant not guilty of kidnapping due to duress (it did not), it could not have found that he killed during the commission of that kidnapping. Defendant could not have killed during the perpetration of a crime of which he was innocent.”)
   See also California Penal Code 189 – Murder. (“All murder which is perpetrated by means of a  destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in  wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping,  train wrecking, or any act punishable under [California Penal Code] Section 206, 286, 288, 287,  or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”)
   See also People v. Cavitt (2004) 33 Cal.4th 187, 197. (“The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony. ( Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1, 491 P.2d 793.))
9. People v. Barraza, (1979) 23 Cal.3d 675, 689. (Summarizing California’s entrapment defense… “A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime.”)
   See also CALCRIM 3408 — Entrapment. (“It is a [California legal] defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control] when the conduct would likely induce a normally law-abiding person to commit the crime. To establish this defense the defendant has the burden of proving by a  preponderance of the evidence that the conduct of the law enforcement agents or officers [or persons acting under their direction, suggestion or control] would likely induce a normally law-abiding person to commit the crime.”)
10. California sex offenses and  California drug crimes are areas of the law that often involve undercover sting operations. These officers are placed undercover in an effort to “catch” criminals in the act of engaging in Penal Code 647(b), California’s prostitution law, Penal Code 647(a) lewd acts in public, Penal Code 311 child pornography, and buying, selling, and possessing illegal substances, more commonly referred to as drugs.
11. See same.
12. See CALCRIM 3408, endnote 10, above.
13. Van  Nuys criminal defense attorneys know the most effective ways to present California legal defenses. Shouse Law Group defends clients throughout Los  Angeles and Ventura County, including the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the  Criminal Courts Building.
14. Because California domestic violence cases and California Penal Code 273d child abuse cases often arise out of emotional, highly-charged situations, partners, spouses, and even children are frequently guilty of making false accusations in an effort to gain an upper hand over the accused.
15. California Penal Code 25 – Insanity as a California legal defense. (“… (b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”)
    See also People v. Horn (1984) 158 Cal.App.3d 1014, 1032. (“Accordingly, we hold that Penal Code section 25, subdivision (b), reinstates the California M’Naghten  right and wrong test as the standard for the insanity defense in this state.”… and at 1027, “The liberalization of the M’Naghten rule, which we have already described, reached its zenith in Wolff. There the court approved this  “commendably broad interpretation upon the M’Naghten ‘knowledge’ test: …’The  test of sanity is this: First, did the defendant have sufficient mental  capacity to know and understand what he was doing, and second, did he  know and understand that it was wrong and a violation of the rights  of another?”’ ( People v. Wolff, supra., 61 Cal.2d at p. 801; italics in original.) As can be seen, this test of sanity uses the conjunctive “and” construction. Conversely, the test of insanity necessarily must use the disjunctive “or” form. In  order to be sane, “’the defendant must be able to know and understand the nature and quality of his act and to distinguish between right and  wrong at the time of the commission of the offense.”’ ( Ibid., italics in original.) Thus if a defendant knows and understands the nature and quality of his act but does not know it is wrong, he is, by definition, insane. Hence the reciprocal tests of sanity and insanity were correctly stated in CALJIC No. 4.00 (3d ed. 1970): “If you find that the defendant was capable of knowing and understanding the nature and quality of his act and, in addition, was capable of knowing and understanding that his act was wrong, you will find that he was legally sane. However, if you find that the defendant was not capable of  knowing or understanding the nature and quality of his act, you will find that  he was legally insane; or, if you find that he was incapable of knowing or  understanding that his act was wrong, you will find that he was legally  insane.” The confusion over the correct usage of the conjunctive/disjunctive form of the M’Naghten rule thus arises from the failure to distinguish between the alternative definitions of sanity and insanity. This not uncommon confusion is evident in the Proposition 8 formulation of the M’Naghten test. We accept this blurred statement for what it appears to be, a careless draft… ”)  This case goes into a lengthy discussion of whether the test requires a defendant to meet both prongs or simply one –  although the test says “and”, the court held that was the result of “careless drafting” and requires only that a defendant meet one of the prongs of the  M’Naghten test (that is, Penal Code 25(b)).
    See also CALCRIM 3450 — Insanity: Determination, Effect of Verdict. (“The defendant was legally insane if: 1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect; AND 2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.”)
16. See Penal Code 25(b), endnote 16,  above.
17. A  motion to suppress evidence is made via at Penal Code 1538.5 hearing. California Penal Code 1538.5 — Motion to return property or suppress evidence. (“(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a  warrant was unreasonable…”)
18. Penal Code 368, California’s elder abuse law penalizes a variety of physical, emotional, and financial that are committed against persons who are 65 years or older.
19. CALCRIM 3406 — Mistake of fact. (“The defendant is not guilty of <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit <insert crime[s]>. If you find that the defendant believed that <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for <insert crime[s]>. If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”)
20. CALCRIM 3407 — Defenses: Mistake of Law. (“It is not a defense to the crime[s] of <insert crime[s]> that the defendant did not know (he/she) was breaking the law or that (he/ she) believed (his/her) act was lawful.”)
21. CALCRIM 3403 – Necessity. (“The defendant is not guilty of <insert crime[s]> if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); 2. (He/She) had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under the circumstances; AND 6. The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.”)
22. California Penal Code 594 PC — Vandalism. (“(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys.”)
23. See same.
24. CALCRIM 3405 — Parent’s Right to Punish a Child. (“A (parent/guardian/ <insert title of other person legally permitted to discipline the child>) is not guilty of <insert crime> if (he/she) used (justifiable physical force/ [(a/or) another] justifiable method) to discipline a child. (Physical force/ [or] <insert other method of punishment>) is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the (physical force/ [or] method) used was reasonable. The People must prove beyond a reasonable doubt that the (force/ [or] method of punishment) used was not justifiable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.”)
    See also Penal Code  273(a), California’s child endangerment law.  (“(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a  misdemeanor.”)
25. CALCRIM 3470 – California’s legal right to self-defense or defense of another (Non-Homicide). (California’s self-defense law states “The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury  [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.”)
    See also CALCRIM 505 — Justifiable Homicide: Self-Defense or Defense of  Another. (“The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being  (raped/maimed/robbed/ <insert other forcible and atrocious crime<)];  [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.”)
26. California Penal Code 26 PC — Persons capable of committing crime; California legal defenses. (“All persons are capable of committing crimes except those belonging to the following classes… Four–Persons who committed the act charged  without being conscious thereof.”)
    See also CALCRIM 3425 — Unconsciousness. (“The defendant is not guilty of <insert crime[s]> if (he/she) acted while unconscious. Someone is unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a similar condition>). [The defense of unconsciousness may not be based on voluntary intoxication.] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious, unless based on all the evidence, you have a reasonable doubt that (he/she) was conscious, in which case you must find (him/her) not guilty.”)
27. Driving under the influence of a  sleep aid is prosecuted just like any other California DUI case. A conviction subjects the driver to the same penalties and punishment as any other DUI  driver.
28. California theft offenses require the specific intent to permanently deprive an owner of his/her property.
29. California Penal Code 26 PC — Persons capable of committing crime; exceptions. (“All persons are capable of committing crimes except those belonging to the following classes… Four–Persons who committed the act charged without being conscious thereof…”)
30. People v. Walker (1993) 14 Cal.App.4th 1615, 1621. (“Unconsciousness caused by voluntary intoxication is, however, governed by section 22, not section 26. (People v. Conley (1966) 64 Cal.2d 310, 323-324, 49 Cal.Rptr. 815, 411 P.2d 911.) Although voluntary intoxication may at times amount to unconsciousness, it cannot give a  complete defense under [California Penal Code] section 26, subdivision 4; it can only negate specific intent under section 22.”)
31. CALCRIM 3427 — Involuntary Intoxication.  (“Consider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or] mental state) when (he/she) acted. A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the (force/[, [or] duress/, [or] fraud/, [or] trickery of someone else), for whatever purpose[, without any fault on the part of the intoxicated person].”)
32. People v. Velez (1985) 175 Cal.App.3d 785, 796.
33. Our Nevada criminal defense attorneys Michael Becker and Neil Shouse are available to answer any questions relating to Nevada legal defenses. Please contact them at Shouse Law Group for more information.