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About San Diego Criminal Law Center

San Diego Criminal Law Center was created to provide useful information for anyone charged with a crime in San Diego and throughout the state of California. Author and attorney Vikas Bajaj has over 16 years of criminal defense experience. If you have been charged with a crime or under investigation, read our articles for useful info that may help you during this difficult time.


San Diego Pair Arrested For Vista Carjacking

At least two people were recently arrested for their role in a San Diego carjacking. The carjacking reportedly occurred in early October. Reports indicate that individuals who were arrested approached a woman who was sitting her car on Rollins Way in Vista around 5 AM. The pair showed her a knife, threatened her, and demanded that she get out of the vehicle. The woman resisted and sustained significant injuries in the struggle. When the woman was subdued, the alleged carjackers got into her car and drove away. Police found the woman’s vehicle at a nearby gas station later that evening. A police search, which included patrol dogs, led to the discovery of the carjackers and their associates.

What is carjacking?

Carjacking is basically a type of robbery. California Penal Code Section 215 PC defines the crime of carjacking as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” In simpler terms, carjacking is the crime of:

  1. Taking a car from the immediate presence of another person;
  2. Without that person’s consent;
  3. Using force, fear, or intimidation;
  4. With the intent to deprive that person of the vehicle, temporarily or permanently.

In order for the Vista carjackers to be convicted, the prosecution will be required to prove that they are guilty of each element of the crime. The report about the carjacking appears to provide all of the information that is necessary to establish these elements. The pair of carjackers

  1. Approached the victim;
  2. Displayed a weapon to intimidate her;
  3. Forcibly removed her from the car;
  4. Took the vehicle from her possession; and
  5. Did so with the intent to deprive her of its use.

If the information provided in the report is true, the San Diego carjackers will likely be convicted for the felony of carjacking.

What are the penalties for carjacking?

Carjacking is a felony in San Diego. A conviction for felony carjacking in San Diego can be punished by either:

  • One year in a San Diego County jail and a term of probation, or
  • Three, five, or nine years in a California state prison and a fine of $10,000.

Carjacking charges will apply for each victim who is present at the scene of the crime. This means that a person who forcibly takes a vehicle from a driver who has two passengers, the carjacker could face three counts of carjacking.

When can the penalties for carjacking be enhanced?

The penalties associated with carjacking in San Diego can be more severe. There are certain situations and circumstances that will cause the penalties to be enhanced. Most of these situations will occur when a carjacker has an existing criminal record.

  1. Great Bodily Injury. If a victim of a carjacking suffers great bodily injury, the possible term of imprisonment can be extended by three to six years.
  2. Use of a Firearm. In San Diego, if you use a firearm to commit a crime the penalties for the crime you commit can be enhanced. Under the 10-20-Life law, you could face an additional 10 years for using a firearm, 15 years for discharging a firearm, or 25 years-to-life for causing death or serious bodily harm with a firearm.
  3. Three Strikes. Carjacking will count as a strike for the purposes of California’s Three Strikes Law. This can result in sentence enhancements that include a requirement to complete 85% of your prison sentence and additional terms of imprisonment of 25 years-to-life.

Fighting Carjacking Charges in San Diego

The best way to limit the consequences of an arrest for carjacking is to hire an experienced criminal defense attorney to handle your case. A criminal conviction for felony carjacking can change your life forever. Hiring an attorney will increase your chances of getting the best possible resolution to your criminal case. Contact the San Diego Criminal Law Center to learn about how our carjacking attorneys may be able to help you today.

Earlier this month, an off-duty Arizona police officer was arrested in San Diego on suspicion of sexual assault. Specifically, the officer was accused of rape, forced oral copulation, and sexual battery. He has not been formally charged with any of these crimes. However, San Diego police are investigating the alleged crimes. If the officer is charged with any of these crimes he could face serious criminal consequences. A conviction may also result in the loss of his job as a Yuma police officer.

Sexual Assault in California

Sexual assault is a serious problem in California. The California Coalition Against Sexual Assault (CALCASA) estimates that 5.6 million women and 3 million men in California have been the victim of a crime of sexual assault other than rape. When rape is concerned, CALCASA estimates that more than 2 million women in California have been victims.

As a result, California has put a lot of time and resources into investigating allegations of sexual assault. A person who is accused of a crime of sexual assault – regardless of their status or occupation – can face serious criminal consequences. California state prosecutors will aggressively prosecute sexual assault in an effort to (1) deter future sexual assault, and (2) punish illegal behaviors.

Rape and Sexual Battery Laws in California

Sexual assault is a broad term that really encompasses a wide range of illegal sexual acts. The Yuma police officer was arrested on suspicion of rape, sexual battery, or forced oral copulation. These are all acts that are considered to be crimes of sexual assault in California.

Rape

Rape is the crime of having sexual intercourse with another person without consent. Specifically, California Penal Code 261 PC defines rape as the “act of sexual penetration…accomplished against the victim’s will by means of force, violence, duress, menace, or fear of bodily injury.”

Sexual penetration is defined as “the act of causing penetration, however slight, of the genital or anal opening of any person…for the purpose of sexual arousal, gratification, or abuse.” Sexual penetration can be done with “any foreign object, substance, instrument, device, or unknown object.”

The crime of rape requires sexual penetration without consent. Consent does not exist if a victim is unwilling or unable to consent. Examples of instances when consent may not exist include when the victim:

  1. Was unconscious or asleep;
  2. Was not aware, knowing, perceiving, or cognizant that the act occurred;
  3. Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act;
  4. Did not have a full understanding or comprehension of what they were doing;
  5. Mistakenly believed that the perpetrator was another person;
  6. Feared a threat of future retaliation for not complying;
  7. Was forced into the act because the perpetrator held a position of authority;
  8. Was drugged; or
  9. Suffered from a physical or mental disability.

Consent on exists when a person, equipped with full knowledge of a situation, makes a decision to affirmatively engage in sexual activity.

The crime of rape is one of the most serious offenses in California. It is always a felony and, depending on the circumstances, can carry a sentence of up to eight years in prison. If a child is the victim of rape the sentence can be extended to as long as 13 years in prison. If a victim of rape actually suffers bodily harm the prison sentence can be extended by up to five years.

Information has not been made available about the details of the Yuma officer’s alleged crime. If he is convicted he will likely face as little as three years in prison.

Sexual Battery

Sexual battery is the crime of touching another person’s intimate parts without consent while that person is restrained. Contact that is made through clothing can be sufficient to trigger charges for sexual battery.

Intimate parts include the vagina, penis, anus, groin, butt, or breast of a female. It must be established that the perpetrator engaged in the contact for the purpose of

  1. Becoming sexually aroused or gratified, or
  2. Sexually arousing, gratifying, or abusing the victim.

Sexual battery under California Penal Code 243.4 PC can be a misdemeanor or a felony. The specific charge will depend on the age of the victim, the extent of the contact, and the perpetrator’s criminal history. Misdemeanor sexual battery carries a maximum penalty of six months in jail and a fine of $2,000. Felony sexual battery carries a maximum penalty of four years in jail and a fine of $10,000.

Forced Oral Copulation

In California, it is a crime to force another person to engage in oral sex using violence, force, duress or threat of injury. California Penal Code 288a defines oral copulation as “the act of copulating the mouth of one person with the sexual organ or anus of another person.” Simply put, oral copulation is oral sex.

Forced oral copulation is a felony offense and carries a possible prison sentence of three, six, or eight years in prison.

The Difference Between Being Arrested and Being Charged With a Crime

The Yuma police officer was arrested for crimes of sexual assault, but San Diego has not formally charged him with a crime. Prosecutors who try sexual assault cases must prove that the defendant is guilty of each element of the crime(s) that they are accused of committing. This requires a lot of evidence and information. In some cases, law enforcement may have probable cause to make an arrest, but prosecutors may not have the evidence needed to satisfy their burden of proof. Criminal charges must be proved beyond a reasonable doubt. This is a much higher standard than probable cause.

If San Diego police and California prosecutors are unable to gather enough evidence against the Yuma officer he may not be charged with a crime at all. Since his arrest, he has likely spoken with a San Diego criminal attorney to prepare a potential defense.

Fighting Charges of Sexual Assault in California

If you have been accused of sexual assault in California it is important to find a good defense attorney. Just because you have been arrested does not mean that you will be charged. If you are charged, however, an attorney can help to get those charges reduced or dismissed. Contact our office today to set up your free consultation. We will review your case, determine which defenses may apply, and answer your questions.

Penalties for Health Care Fraud in the United States

The United States spends more on healthcare per person than any other industrialized nation in the world. In 2015, the country spent more than $3.2 trillion on healthcare. When an industry generates so much capital the potential for abuse increases. Health care fraud is a rising problem in the United States. In fact, the FBI estimates that health care fraud costs the United States “tens of billions of dollars” each year. Health care fraud is considered a federal white collar crime. A person who is charged with a health care fraud can face serious criminal consequences.

White collar crime is often thought of as a victimless crime. This, however, is not true. White collar crime is a nonviolent, financial crime that can cause serious problems for its victims. When a country and its taxpayers suffer losses of nearly 80 billion dollars each year, it is hard to say that health care fraud is a victimless crime. Crimes of fraud may seem less harmful than violent crimes because the victim of the crime is out of sight. However, real people suffer can real consequences when white collar crimes are committed. Former Attorney General Loretta Lynch has gone on record to say that “health care fraud is not an abstract violation or benign offense – it is a serious crime.” Perpetrators of health care fraud “seek to use public funds for private enrichment” at the expense of “real people” who are often in need of “significant medical care.”

Health care fraud is a general term that includes insurance fraud, pharmaceutical and drug fraud, and medical fraud. Health care fraud is, of course, a crime of fraud. What exactly makes an act fraudulent? Fraud is loosely defined as knowingly and willfully deceiving another for the purpose of financial or personal gain. Essentially, fraud is lying (either overtly or by omission) to achieve a financial or personal advantage.

Health care fraud is a federal offense. This means that the federal government will investigate and prosecute the crime for which you have been accused of committing. Federal crimes are often subject to harsher criminal penalties, including detainment in a federal prison.

Crimes of health care fraud can be prosecuted under 18 U.S. Code Section 1347. Under the federal criminal law, a person is guilty of health care fraud when they knowingly and willfully execute (or attempt to execute) a scheme to:

  1. Defraud any health care benefit program; or
  2. Obtain, by mean of false or fraudulent pretenses, representations, or promises, any money or property owned by or under the control of any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services.

As you can see, the crime of health care fraud is actually quite broad. The statute covers a wide range of possible acts. The statute can be applied to individuals, health care providers, and/or insurance companies. In 2016, the FBI’s Fraud Section executed the largest health care fraud takedown in the country’s history for a scheme that defrauded Medicare and Medicaid. Individuals charged with health care fraud included nurses, doctors, and other medical professionals.

Examples of acts that may be prosecuted under the federal health care fraud statute include:

  • Kickbacks
  • Submitting duplicate claims
  • Providing and billing for excessive services
  • Providing and billing for unnecessary services
  • Unbundling
  • Upcoding of services provided
  • False billing
  • Using another person’s health care coverage
  • Medicaid and Medicare fraud
  • Copying and pasting medical records, and
  • Improper referrals.

Actions taken to deceive a health care service provider or the payor of health care services (Medicare, Medicaid, etc.) can be prosecuted as acts of health care fraud.

When the federal government stands to lose nearly $80 billion each year you can be certain that they will aggressively prosecute individuals and companies who are believed to have committed health care fraud. The Department of Justice under Attorney General Jeff Sessions has vowed to seek the most serious criminal charges and harshest penalties possible for federal crimes. A conviction for health care fraud carries the possibility of serious time in federal prison. Generally, health care fraud is punishable by up to 10 years in a federal prison. However, if a victim suffers serious bodily injury or dies as a result of the fraudulent act, the fraud may be punishable by 20 years to life in prison.

White collar crimes, including health care fraud, are taken very seriously by the federal government. The FBI and DOJ will not hesitate to bring federal charges against anyone who is believed to have participated in a fraudulent scheme. If you are accused of health care fraud, it is important to contact an experienced criminal defense attorney who is familiar with the nuances and complexities of federal white collar crime laws.

About the Author: Attorney Gus Kostopoulos is a former prosecutor and owner of Kostopoulos Law Group