Articles Posted in Criminal Defense

In the common law, reckless endangerment (also known as criminal endangerment) is a crime consisting of acts that create a substantial risk of serious physical injury to another person. In essence, it is a crime that covers a wide range of behavior, although the term has mainly come up in the context of a DUI.

In the state of California however, the crime of “reckless endangerment” comes up in the context of committing a DUI when there is a child under the age of 14 in the car with you. Specifically, this crime qualifies you for a sentencing enhancement. Vehicle Code 23572, which addresses DUIs with children present, imposes a punishment of:

• 48 hours in a county jail for a first DUI conviction;
• 10 days in jail for a second DUI conviction;
• 30 days in jail for a third DUI conviction; or
• 90 days in jail for a fourth or subsequent misdemeanor DUI conviction

In addition to your underlying California DUI sentence, a charge under Vehicle Code 23572 imposes an additional maximum 180 days in jail.

Watch Out for Child Endangerment Charges

In addition to a DUI charge, you may also face another additional charge of “child endangerment” under California Penal Code 273a. Child endangerment is not merely a family law issue; it is a crime. Unlike the crime of child abuse, this charge does not require you actually injure a child—only that you exposed the child to risk of injury. Child endangerment is a misdemeanor punishable by up to one year in county jail. If convicted of felony child endangerment, you face up to 6 years in California State prison.

It is important to note however, that if you are convicted of both a DUI, and child endangerment under PC 273a, the court is prohibited from imposing the additional sentencing enhancement under Vehicle Code 23572.

Criminal Negligence

California defines criminal negligence as a mental state of disregarding known or obvious risks to human life and safety. An example would be leaving a loaded firearm within reach of a small child. This is a different and separate charge from child endangerment, but a charge of criminal negligence may substitute for criminal intent under very specific circumstances. When this happens, it can subject you to more serious charges such as child endangerment or manslaughter even if your actions were unintentional.

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Attorneys often hear this question—how do multiple convictions affect a sentence?  Being convicted of more than one crime may have a big impact on a criminal defendant’s sentence or “punishment.” This issue comes up in the context of convictions for the same offense such as multiple DUIs, multiple convictions for different things, and multiple convictions for the purposes of qualifying for California’s ‘3 strikes’ law.

Multiple Convictions in Federal Court

The U.S. Sentencing Commission (USSC) is a federal agency within the judicial branch of the government that develops sentencing guidelines for the U.S. federal courts.  There are two kinds of courts in this country–federal courts and state courts.  Criminal cases involving federal laws can be tried only in federal court (but most criminal cases involve violations of state law and are tried in state court). Examples of federal crimes include bringing illegal drugs into the country or across state lines.  If you find yourself in federal court, the judge may consider the U.S. Sentencing Commission’s guidelines.  The 2011 Federal Sentencing Manual §5G1.2 basically requires multiple conviction sentences to run consecutively unless the court decides otherwise or the specific law that defendant broke says differently.  If the judge wants otherwise, s/he must specify in the sentence.

Consecutive vs. Concurrent Sentences

A consecutive sentence (also called a “cumulative” sentence) is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are served one after the other.  For example, if a defendant is convicted of three crimes that carry sentences of five, three, and two years, he’ll serve 10 years in prison.  A concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is 5 years.

Multiple Convictions in State Court

In California, like any other state, a judge may also specify whether s/he wants a sentence to run concurrently or consecutively.  Moreover, there have been some recent changes in California’s stringent “3 Strikes” laws.  Back in 2014, the California Supreme Court ruled that 2 felony convictions stemming from a single act may not be considered separate strikes under the state’s “3 strikes” sentencing law.  Rather, it only served as 1 strike for the purposes of that law.  In the past, the court has ruled that two felonies may be treated as separate strikes even if they were prosecuted in a single trial.  This has affected the sentencing for those with multiple convictions.
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This blog seeks to explain two basic concepts in criminal law which tends to lead to significant confusion: double jeopardy, and dual sovereignty.

Double jeopardy is a constitutional principle that comes from the double jeopardy clause in the Constitution’s 5th Amendment.  It means that you may not be charged or prosecuted for the same crime twice.  For example, if you were charged with the murder of Mr. Smith, went to trial, and were found innocent, you may not later be charged again with the murder of Mr. Smith if new evidence surfaces against you for the crime.  You may be charged for other crimes, such as robbing and assaulting Mr. Smith, or conspiring to kill Mr. Smith, but not murdering Mr. Smith.

The Exception: Dual Sovereignty

The 14-year-old teenage girl who set the Cocos fire in San Diego last May was sentenced recently by Judge Howard Shore in a two-week non-jury trial.  The minor, whose identity has not been revealed, was sentenced to 400 hours of community service and must pay $40,000 in restitution in fines.  She must also report back to the judge every 60 days and write ‘apology’ letters to the victims of the fire who lost their homes.  She will serve no jail time.

The teen was convicted of three arson counts one misdemeanor count of allowing a fire to get out of control.  Originally, she (13 at the time) set a fire in her backyard which was extinguished by San Diego firefighters.  She then set another one the next day, and another one in a neighbor’s backyard, which set the ember that traveled nearly half a mile to spark the Cocos fire.  The Cocos fire then spread to more than a dozen brush fires due to the hot, dry, windy conditions and burnt over 2,000 acres and destroyed three dozen homes.  The judge ruled that the teen acted “willfully and maliciously in setting the fires,” but said there was no evidence to suggest she intended to harm anyone or burn homes.

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As mentioned in my previous post, Prop 47 (“the Reduced Penalties for Some Crimes Initiative”), which was approved by California voters via a ballot initiative last November 2014, would reduce the classification of most nonviolent and non-serious property and drug crimes from a felony down to a misdemeanor.

Since then, the California Legislature in its 2015 legislative session has introduced bills to amend Proposition 47 to weaken it.  If any of these bill are passed and signed by the governor, the changes must go on a 2016 ballot for constituents to vote on. Some of the proposed changes include:

• Senate Bill 333 and Assembly Bill 46 would allow felony charges to be filed against suspects accused of having certain date-rape drugs (Proposition 47 reduced the personal use of most illegal drugs to misdemeanors).
• Assembly Bill 390 would require persons convicted of specified misdemeanors to provide DNA samples (California law currently only requires individuals convicted of felonies to provide DNA samples).
• Assembly Bill 150 would make stealing a gun a felony crime (Proposition 47 made stealing an item that is valued at less than $950 a misdemeanor). Therefore, the proposed change would make stealing a gun valued at less than $950 a misdemeanor.
• Assembly Bill 1104 would allow the issuance of search warrants for misdemeanor crimes that were previously classified as felonies before Proposition 47’s passage.

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