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Law School Help: California Criminal – Identity Theft

In today’s post, I’m going to go over the California crime of Identity Theft. In this series of posts that I’ve, apparently, labeled “Law School Help,” I’m going to try and go over terms (e.g. common criminal offenses) that ordinary people might have heard and provide a basic description of the legal authority (e.g. the particular statute section), the elements involved, and any sentence that the offense in question might carry. In prior posts, I’ve gone over questions like “What is Consideration?” and “What is a Common Carrier?” If you’re a law school student and you’re reading this, hopefully this series of posts provides you more real-world or practical knowledge compared to the more abstract or theoretical concepts you’re learning about in the classroom. Anyway, the topic today is the criminal offense of Identity Theft. Identity Theft is, unfortunately, extremely common. Some of you reading this have probably been the victims of it yourself. In California, Identity Theft is a crime and it’s covered under Section 530.5 of the California Penal Code. Section 530.5 goes over several different flavors of identity theft which I’ll go over in a moment, but the underlying offense of Identity Theft consists of: Willfully obtaining Personal Identifying information of another person Using that Personal Identifying information for any unlawful purpose. “Unlawful purpose” includes, but is not limited to, obtaining or attempting to obtain credit, goods, service, real property, or medical information This use of the Personal Identifying information is done without the consent of this other person. If you want to look it up, this is all in Section 530.5(a) of the California Penal...

California Statute of Limitations – Conversion

Here’s another installment of my series of posts on the Statute of Limitations. Today, I’m going to go over the tort of Conversion under California law. As background, “conversion” is a fancy way of saying that a person (i.e. the defendant) has interfered without consent with the plaintiff’s ability to use their property by, for instance, (1) preventing plaintiff from having access to it, or (2) destroying it. The term arises because the defendant has taken plaintiff’s property and converted it — hence, “conversion” — to the defendant’s own use. If that definition makes sense, you might be asking “Andy, how is this different from theft?” There are at least two answers to that question: First, in California, “theft” is a crime. See, for example, Sections 484 and 487 of the California Penal Code. California further divides “theft” into two degrees based on the dollar value of what was taken. Under Section 486 of the California Penal Code, if it’s under $950, then it’s “petty theft,” but if it’s over $950, then it’s “grand theft”. Second, the crime of theft fundamentally involves the taking of property. This taking may involve fraud or deception, but it doesn’t have to. Taking property, though, is only one way in which conversion can be done. Conversion fundamentally involves interference of some kind with the owner’s ability to use the property. It is possible to interfere without actually taking the property from the lawful owner. Phrased another way, theft would be a kind of conversion, but there are other types of conversion besides theft. Anyway, definitions and theft aside, the question I was trying...

Burden of Proof? (CA Evidence Code Section 500)

In this post, I’m going to go over something that might strike some of you as being extremely pedantic. My intent is not to be pedantic simply because I can, but instead, I’m hoping to illustrate a more nuanced point that hopefully will be of help to you. Many people have heard the term “burden of proof”. The term is used widely, including in many statutes such as Section 500 of the California Evidence Code. Section 500 states: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” In other words, you bear the burden to prove whatever it is you’re asserting, be that a claim, defense, etc. When I was in law school, however, I had a professor who absolutely hated that term because he considered it complete nonsense. Instead, he said, the “burden of proof” is actually two separate independent burdens.┬áThe first is the burden of the party to produce evidence that supports the claim for relief, defense, or whatever else they are asserting. This evidence, obviously, has to meet various criteria. At a minimum, it needs to be relevant to the issues at hand, properly authenticated, and non-privileged. Once it clears those hurdles, then it might still not be admissible because the court you’re in has, for example, exercised it’s discretion to exclude it because it is more unduly prejudicial than it is probative. As an aside, the authority that allows courts in California to do this is Section 352...

Law School Help: Criminal – False Imprisonment

In today’s installment of my “Law School Help” series, I’m going to go over the California crime of False Imprisonment. As with my other posts in this series, my intent is to basically translate terms (e.g. specific criminal offenses) that the average layperson might have heard before into specific code sections that can be googled. If you’re a law school student, hopefully these posts provide you a more real-world or practical perspective of the subjects you’re learning about in the abstract/theoretical environment of your classroom. For completeness, California also has a civil cause of action for False Imprisonment (i.e. where the victim can sue the perpetrator for money). I wrote a post about the California civil cause of action in 2017. You can view that here. New York also has a civil cause of action for False Imprisonment. I wrote about that in 2017 as well. You can view that here. Anyway, that said, the underlying crime of False Imprisonment in California is defined in Section 236 of the California Penal Code. Section 236 is surprisingly short and says: “False imprisonment is the unlawful violation of the personal liberty of another.” Thus when it comes to elements or criteria, the underlying basic or vanilla offense of False Imprisonment involves: Defendant intentionally and unlawfully restraining, detaining, or confining a person, and Defendant’s action caused the victim to stay or go somewhere against their will The possible sentences for False Imprisonment are described in Section 237 of the California Penal Code, which states the following: “(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by...

2020 Update – California Prenuptial Agreement 7-Day Waiting Period (CA Family Code section 1615)

On my Youtube channel, I have some videos in which I go over how prenuptial agreements in California work. In one of those videos, I go over how an unrepresented party to a prenuptial agreement has to have at least 7 calendar days to review the agreement prior to signing the agreement. In addition to the 7 days, the unrepresented person also has to be told to go get legal counsel. Failure to provide this admonition or provide the unrepresented spouse the 7 days means that the prenuptial agreement can be invalidated on that basis alone. The goal, of course, is to not force or coerce any person in to a prenuptial agreement that they would other wise not agree to freely. If you need California legal authority for that, it’s section 1615 of the California Family Code. In the real world, this 7-day waiting period often poses a problem if you have a wedding date set and you’re rushing to get a prenuptial agreement done before that and at least one of the parties to the prenuptial agreement is not represented by an attorney. The purpose of this blog post is to describe at least one major update to Section 1615 of the California Family Code that took place for calendar year 2020. The update is found in section 1615(c)(2) (B) of the California Family Code which states: “For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the...