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.
Criminal
Law: Felonies & White Collar Crime, Attempt, Conspiracy, Aiding and
Abetting, Felonies, Homicide and Suicide, Assault and Battery, Rape, Kidnapping,
Stalking, Hate Crime, Federal Drug and Gun Laws, Crimes Causing Harm to
Property, White Collar Crime, Bribery, Computer Crime, Embezzlement, False
Statements, Fraud, Obstruction of Justice, Perjury, Tax Crimes
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