A True Black Friday for this Felon

This Black Friday when you are pushing, shoving, jumping, and committing other Olympic feats to get to the hot-ticket items, remember this story and purchase extra security for your new “toys.” This Friday is a dark, dark Friday for a 22-year-old San Pedro man who is in custody for residential burglary. Detectives tracked him down using the “Lojack for Laptops” software on the laptops he stole from a Rancho Palos Verdes home.

It seems that this San Pedro man decided he just couldn’t wait for Black Friday deals and took matters into his own hands. He was identified as an unlicensed contractor who had done work at the victim’s home two months earlier. The security software was able to gather personal information, including his name and photograph once he logged into the computer. Now, that is pretty crafty of modern technology.

The article states that the police were able to convince him to bring the laptop to the Lomita Sherriff’s station, where he was then promptly arrested. Now, let me just make it clear what this means. The Sherriff’s officers are not brilliant negotiators; when an article says any officer “convinced” a defendant to come down to the station it means one of two things. The officer lied to the defendant somehow, prompting the defendant to head over to the station; or the officer threatened the defendant with arrest if he didn’t cooperate. Sometimes, there is a combination of both.

Earlier in our Friday series, I spoke about commercial burglary. The San Pedro man allegedly stole from a residence making the crime here residential burglary. Residential burglary is the more serious of the two types. A defendant commits residential burglary if he burgles any inhabited dwelling - a place where someone lives or sleeps. A dwelling is "inhabited" if it is used for dwelling purposes, whether or not it is currently occupied. A prosecutor has to prove that the defendant entered the dwelling and that, at the time he entered; he had the intent to steal.

Again, there is the sticky situation of “intent.” Any good defense attorney will latch on to this element, especially in this laptop case. Absent any other evidence, it's just as likely that the San Pedro man didn't form the intent to steal until after he was already inside the home. This is a prime case for theft, not residential burglary because when a defendant formed the intent to steal is the key difference between burglary and theft.

In this case, the prosecution is really going to have to nail down a timeframe for the defendant’s action. The prosecution will need to show something more than just his possession of the laptop. This is because he had a legitimate intent as he entered the home – work – and without more it is too much of a stretch to place intent to steal on him.

If he is convicted of first degree residential burglary, he faces two, four, or six years in the California State Prison and a maximum fine of $10,000. California Penal Code 462 instructs the judge not to issue a probationary sentence if he was convicted of burglarizing an inhabited structure unless it is an "unusual case where the interests of justice would be best served by doing so". Here, if the prosecution doesn’t reduce the charge to theft, then a judge should grant probation. This is because this is not a typical residential burglary – not at night, not with weapons, and not a “break in.” Either way, the San Pedro man faces a strike on his record.

This is an unfortunately black Friday for the San Pedro man. He really should have waited for the shopping deals on Black Friday. Instead, is in custody without bail because of his immigration status. However, this is an important Thanksgiving lesson – be thankful for modern technology and make sure to equip your important electronic toys with security software.

You can read the story of the Rancho Palos Verdes laptops stolen by the San Pedro man here.

Friday Family Feud: Child Abduction Charges

This week’s story is about a Lomita family and the child caught in the middle. The boy was in the legal guardianship of his paternal grandmother, which his mother apparently doesn't approve of. His biological mother, with the help of her parents, abducted the boy from his stroller. This happened while the boy’s relative was pushing the stroller he was in, down the street. Now, the biological mother and her parents didn't just run up and grab the boy. They verbally and physically confronted the relative before leaving with the boy.

Deputies were able to contact the biological mother and her parents, and convince them to return the boy. Of course, they were then arrested and released on bond. They will likely be facing charges of Penal Code 278, California's child abduction law. The child abduction law prohibits people who do not have legal custody over a child from maliciously trying to keep a child away from his/her legal parent/guardian. Since the biological mother and her parents did not have legal custody of the child, they can be charged with child abduction.

Child abduction is just a specially recognized form of kidnapping. California's kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, are violated when the defendant moves another person a substantial distance without that person's consent by using force or fear. “Force or fear” means inflicting harm or threatening too. "Simple" kidnapping is a felony, subjecting you to up to 8 years in the California state prison.

The biological mother and her parents are going to rely on the many defenses available to kidnapping. One defense is that the alleged victim consented to being moved. This is an obvious defense because a child will consent to going anywhere with his mother. The problem here is we do not know how old the child is, and typically children are deemed incapable of giving legal consent. They may also allege that they have the right to travel with the child. This would only be the case if the child custody order included such a travel provision. Otherwise, that defense may be a loser.

The biological mother and her parents could also allege that the prosecution will not be able to meet all the elements of kidnapping, especially as to force or fear. This goes back to a child wanting to go with his mother, no force or fear needed. A problem with this defense is that, when kidnapping a child, the only amount of physical force that is required is enough to take and carry the child away. Another problem they have is that they verbally and physically confronted the relative who had the child. This could be interpreted by the prosecution and a jury as being enough force or fear (threats of harm) to meet the elements of kidnapping.

The parents of the biological mother could have the best defense by asserting they were not the kidnapers but were merely present. The key here is where they were when the biological mother took the boy. Were they standing nearby, or just sitting in the car? If they were not aware of the biological mother’s plans, and they were just in the wrong place at the wrong time, then they should be acquitted. This could explain why they returned the boy, because they never intended to take him.

The last applicable defense could be a stretch to apply here, but there is a statutory defense where a defendant would not be guilty of kidnapping if the defendant took the child under 14 years of age to protect the child from danger of imminent harm. The biological mother and her parents would have to show that the relative pushing the boy in the stroller posed imminent danger to the boy. Without knowing more about the situation, all I can say is this will be tough to win.

Child abduction is a wobbler, which means it can be charged as either a misdemeanor or felony. As a felony, it subjects the defendant to a maximum four-year state prison sentence and a maximum $10,000 fine. If convicted of child abduction and kidnapping, the judge could order defendants to serve this sentence in addition and consecutive to the time imposed for the kidnapping charge. Simple kidnapping is a felony, punishable by three, five or eight years in the California state prison, and a maximum $10,000 fine.

Lastly, Simple kidnapping qualifies as both a serious felony and a violent felony. This means a conviction for violating California's kidnapping law counts as a "strike" for purposes of California's three strikes law. If defendants are subsequently charged with any felony - and have a prior "strike" on their record - they will be referred to as a "second striker," and the sentence will be twice the term otherwise required by law. If charged with a third felony - and there are two prior strikes - defendants will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in the state prison. That is a lot to face, and a lot to lose to get your biological child back.


Read the news story here.