Under California’s new “realignment” laws, some sentences that were previously required to be served in state prison can now be served in a local county jail. This legislation was designed to resolve the massive state prison overcrowding problem. In the case of People v. Guillen (2013) Cal.App.4^th, the Court held that a client who was found guilty of a violation of Vehicle Code §23152(b) with a prior conviction was ineligible to serve his sentence in the local county jail because the prior DUI was one in which the client served time in prison. It was a felony.

The sentencing record in this particular case did not contain language specifying that the sentence was to be imposed pursuant to Penal Code §1170(h). As such, the defendant took the position that since there was no specific language regarding Penal Code §1170 the default language in Penal Code §1170(h)(1) makes the crime punishable pursuant to the realignment laws in county jail. Although a leading Santa Rosa DUI attorney agrees with this position, the Court of Appeal disagreed and took the position that because nothing in the sentencing proceeding specifically mentioned Penal Code §1170(h) and Vehicle Code §23152 (the general DUI law) makes no reference to Penal Code §1170(h), while other sections of the Vehicle Code do, this particular sentence had to be served in state prison.

Clearly, Santa Rosa DUI defense lawyers need to be aware of these Court decisions if their clients want to serve their jail time in a local county jail as opposed to state prison.

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In a recent case, the primary question was what actually qualifies as a “burglary tool”. Penal Code §466 contains a description of tools and instruments that are likely to be used in a burglary. In this particular case, the defendant was found with a bag containing plastic gloves. The detective testified that in his opinion the bag and gloves were burglary tools in that the defendant used the gloves to avoid leaving fingerprints and the purpose of the bag was as an instrument to carry away stolen items. The defendant was convicted of various theft crimes, including Penal Code §466 which, in essence, is the crime of possession of burglary tools. As noted by a Napa criminal attorney, the 4^th District Appellate Court reversed and ruled against the prosecution holding that since Penal Code §466 lists specific tools and instruments, a violation of Penal Code §466 is limited to those particular items and/or similar items. The Court further indicated that having mere access to a tool that could be used in the course of a burglary is insufficient.

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Grand theft (Penal Code §487(c)) is a crime of theft requiring a “taking” of money or property “from the person of another”. In the recent case of People v. Geeter (2012), a jury rendered a “not guilty” verdict to someone accused of robbery and convicted him of grand theft. As noted by a Santa Rosa criminal attorney, the Appellate Court agreed that this was a correct decision. The alleged victim in the case tried to make a cash deposit, but the ATM rejected the cash deposit and before the victim had removed the cash from the ATM, defendant attacked the victim, causing the victim to leave without taking the money from the ATM. At a later point in time, the defendant took the money from the machine.

There was no evidence in the case showing that the defendant attempted to grab the money from the alleged victim after the machine rejected it. Although the victim had voluntarily given possession of the money to the ATM, there was no evidence that the victim regained physical possession of the money after the machine rejected it. When there is no “taking from the person of another” there is no grand theft.

For more information about California theft issues, click here.