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Gaming Laws in California: PC 330
California Penal Code Section 330 (PC 330)Penal Code section 330 outlines the crime of "gaming," or illegal gambling. It states that, "Every person who deals, plays, or carries on...any banking or percentage game played with cards, dice, or any device, for money, and every person who plays or bets at or against any of those prohibited games, is guilty of a misdemeanor."
What Is Gaming or Illegal Gambling?
Gaming refers to the act of gambling illegally. It is a crime to participate in a game that involves gambling or to run a gambling operation in the state of California. For gambling to constitute a crime, you must have illegally participated in some way, and the game itself must have violated the law.
You do not necessarily have to play in the illegal game in order to be charged with a PC 330 violation. The law specifies that it is illegal to deal, play, run, or oversee a gambling operation. This means that participating in gaming is not only illegal but if you conduct an illegal gambling operation on your property and collect some of the profit, you are guilty of a gaming crime.
The other requirement is that the game in question must be a "prohibited game" under California law. This means that the game involves a bank, house, or dealer that collects money from losers and gives it to the winners and/or itself. There are 2 main categories this creates: "banking" and "percentage" games. Banking games involve a 3rd party "bank" that distributes money from the loser to the winners. A percentage game means that the bank collects a percentage of the winnings or the total amount of bets.
What Are the Punishments for Violating PC 330?
Gaming is considered a misdemeanor crime in the state of California. The punishments for gaming may include up to 6 months in a county jail or a fine ranging from $100 to $1,000. Given that it is only a misdemeanor offense, a judge may choose to waive jail time and opt for probation instead.
How Can I Defend Myself If I Am Accused of Illegal Gambling?
There are quite a few legitimate defenses if you are accused of violating PC 330. Some of these are:
- You did not participate in the game in a way that was illegal
- The game was not a "prohibited game"
- The game is legal due to an exception in the law, such as a charity bingo game
If you can prove that you did not participate in the game in question in a way that constitutes illegal activity, then you will successfully defend yourself against this charge. For example, say you own a club and some patrons start independently playing a game of poker. Even though it happened in your establishment, you did not collect any winnings from anyone nor permit the game to be played. This would be a legitimate defense against a gaming violation.
You can also prove that the game was not prohibited, meaning that it was not a banking or percentage game. You could show that the game didn't involve money at all, or if it did, there was no house that collected a part of the earnings.
Lastly, there are a couple of exceptions to California gaming laws, most notably charitable games. Penal code section 326.5 specifies that bingo games held by certain charitable organizations are legal.
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Wrongful Denial of a Health Insurance Claim in California
When is it wrongful for an insurer to deny coverage to its insured in the state of California?
California Civil Jury Instructions Section 2300 outlines the requirements to establish that an insurer breached its contract to cover a loss for its insured. The 3 elements are:- The plaintiff suffered a loss, all or part of which was covered under an insurance policy with [name of defendant
- The defendant was notified of the loss as required by the policy
- The amount of the covered loss that [name of defendant] failed to pay.
- The insurance policy does not cover the type of treatment needed for an injury.
- The procedure being sought is cosmetic or unnecessary.
- The claimant lacked pre-authorization or a referral.
- The treatment is being given by an out-of-network provider.
- The claim has typographical errors
- The claim was not made in a timely manner.
- The plaintiff suffered a loss covered under an insurance policy with [name of defendant];
- The defendant was notified of the loss;
- The defendant unreasonably [failed to pay/delayed payment of] policy benefits;
- The plaintiff was harmed; and
- The defendant's [failure to pay/delay in payment of] policy benefits was a substantial factor in causing harm to the plaintiff
A Vital Part of Establishing Bad Faith
A vital part of establishing that an insurer acted in bad faith is proving that the insurer not only breached the contract but did so in an "unreasonable" way. Just because an insurer breaches a contract by wrongfully denying a claim does not necessarily mean it acted in bad faith. Some examples of this would include an insurer denying coverage of a procedure that is debatably cosmetic or denying a claim based on an honest error from the insurer. To constitute bad faith, the denial must be based on unreasonable action, which is harder to establish. California Judicial Code 2331 gives some factors that tend to constitute bad faith in denying a claim. These include, but are not limited to:- Failure to acknowledge a claim or respond to it in a reasonable amount of time.
- Ignoring or failing to provide evidence to support a claim decision.
- Falsifying or misrepresenting relevant facts or evidence related to the claim.
- Failing to investigate a claim that was reasonably made.
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Exhibition of Speed in California
An exhibition of speed or otherwise known as "speed ex", "flooring it", "street racing" is the amusement of car and bicycle lovers, meanwhile it is spectacular for bystanders. But few people know that the attractive act full of adrenaline is criminalized under the laws of California. It is considered as one of the driving offenses.
The Statutory Definition of Exhibition of Speed in California
According to California Vehicle Code 23109(c), a person shall not engage in a motor vehicle exhibition of speed on a highway, and a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.
From the statutory provision emanates that this offense includes 2 indispensable elements:
- Exhibition of speed in a motor vehicle
- Committal of the act on a highway
Unlike element 2 when it is clear what the highway is and how it differs from other roads, element 1 may not be precise for most people, therefore it needs to be clarified.
Legal Definition of Exhibition of Speed
The concept of "an exhibition of speed" is described as illegally accelerating or driving at a rate of speed that is dangerous and unsafe in order to show off or make an impression on someone else. Thus, the mere concept of "an exhibition of speed", in its turn, has distinctive components, which may be summarized as:
- To exceed the permitted rate of speed to the extent it becomes dangerous and unsafe
- To do it exclusively for showing off or trying to impress on someone else
Example of Exhibition of Speed
Suppose driver X drives his car on the highway at a normal rate. Suddenly he notices a pretty woman driving next to him. He accelerates the car to the dangerous speed to make an impression on her.
What Is the Penalty for Exhibition of Speed?
Dependent upon the severity of an offense and circumstances of the case, the punishment varies. In particular, the exhibition of speed leads to one of the following penalties
- Imprisonment in a county jail for up to 90 days
- Fine of up to five hundred dollars ($500)
- Both that fine and imprisonment
As the perpetrator, the abettor of this offense is also subject to liability.
Legal Defense Against an Accusation of Exhibition of Speed
To convict a person for this crime, the prosecution must successfully prove all the elements discussed above. In this sense, the position of the defense is much more favorable, since the offense includes a special purpose- to show off or to make an impression on someone else. So in the concrete case, the legal question is- whether the offender has acted with that purpose in mind or not?
In practice, weighty facts and arguments are necessary to prove the presence of a particular purpose. The latter may be easily challenged by the defense. Although the burden of proof is not on the defense, but they may argue that the offender was not trying to boast or impress someone, but was rushing to the hospital or hurrying up to the work, for example.
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California Penal Code 463: Looting Laws in California
California PC 463
California Penal Code section 463 states, "Every person who violates Section 459, punishable as a second-degree burglary pursuant to subdivision (b) of Section 461, during and within an affected county in a "state of emergency" or a "local emergency" or under an ‘evacuation order,' resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or pursuant to subdivision (h) of Section 1170."
What Constitutes the Crime of Looting Under California Law?
Looting is different than traditional theft or burglary in that it must be done during some type of emergency that is declared by a governing body. Basically all kinds of theft, no matter how severe, can be classified as looting if done under the necessary conditions. The crimes include:
- Grand Theft (stealing more than $950 worth of items)
- Petty Theft (stealing less than $950 worth of items)
- Burglary (entering an uninhabited dwelling to steal or commit a felony)
The two types of emergencies where looting can occur are "state emergencies," which can only be declared by the California governor, or "local emergencies," which can be declared by local bodies. These emergencies are declared when an adverse event happens that is so severe, that the locality or state cannot handle it without outside assistance. These can include:
- Wildfires
- Riots
- Floods
- Earthquakes
- Hurricanes
- Blizzards
What Are the Punishments for Looting in California?
Looting is a "wobbler" offense in California, meaning that it can either be a misdemeanor or felony depending on the circumstances of the crime. The type of theft you committed, the value of the items stolen, and the type/severity of the emergency will all factor into the sentencing.
Petty theft looting is always a misdemeanor offense in California, and it can earn you:
- Up to 6 months in a county jail
- A maximum fine of $1,000
- AND/OR up to 80 hours of community service
Committing looting by grand theft or burglary can either be a felony or misdemeanor. If charged as a misdemeanor, it can result in:
- 1 year of jail time
- A maximum fine of $1,000
- AND/OR up to 240 hours of community service
As a felony, the punishments could be:
- Up to 3 years in a county jail
- A fine of up to $10,000
- AND/OR up to 240 hours of community service
How Can I Defend Myself if I Am Charged With Looting?
Some potential defenses to a violation of PC 463 include:
- You were accused of burglary when you did not intend to commit a crime
- You were mistaken for someone else
- You did not steal during a state of emergency
There are a lot of emergency situations that may require one to enter a dwelling that they should not be in. For example, a flood might force people on the street to take refuge in nearby stores and buildings. If you were entering these buildings without the intent to commit any crime, especially if you did so for your own safety, this could be a possible defense.
While being mistaken for someone else is a defense to basically any crime, it is especially relevant to looting. For instance, riots are a form of emergency where widespread looting is common. It is common for law enforcement, who are often overworked during states of emergency, to arrest people at riots and protests for crimes committed by other people there. If you can prove that you were not the one who committed the alleged crime, you would be innocent.
Lastly, if you did steal, but not during a state of emergency, you could avoid the harsher penalties for looting that are not the same for traditional theft. Say the state of emergency was ended the day before you committed petty theft, then you would only be guilty of petty theft rather than looting.
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California Penal Code Section 470: Forgery Laws in California
California PC 470
California Penal Code section 470(a) states, "Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery."
California Penal Code section 470(b) states, "Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery."
California Penal Code section 470(c) states, "Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instruments, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery."
What Is a Forgery?
Forgery is the crime of falsifying a document, parts of a document, or a signature with the intent to defraud another party. PC 470 specifies several ways that the crime of forgery can be committed. They include:
- Using someone else's signature without their approval
- Altering or creating a false legal document
- Forging a seal
- Falsifying or changing a document listed in PC 470 (d), which includes documents such as:
- Checks
- Bonds
- Banker's Bills
- Money Orders
- Deeds
- Contracts
- Receipts
- Obligations
Not only is it required that document falsification takes place, but for the forgery to be a crime, it is also required that the person who did it, has done so with "Intent to Defraud." Someone has this intent if it can be proven that they tried to deceive another person in order to benefit financially and/or legally.
What Are the Criminal Punishments for Forgery?
Forgery is a "wobbler" offense in California, meaning that it can be charged as either a misdemeanor or felony crime depending on the severity of it. It is mainly up to the judge's discretion on how they would like to charge the crime, but it is worth noting that forged documents that defraud people out of $950 or less are charged as misdemeanors.
Misdemeanor forgery charges can result in:
- Up to 1 year in a county jail
- A maximum fine of $1,000
Felony forgery charges can result in:
- Up to 3 years in a county jail
- A maximum fine of $10,000
How Can I Defend Myself if I Am Accused of Forging a Document?
There are many common defenses if you are accused of forgery in California. Some of these include:
- The document was not intentionally doctored
- You had permission to sign for another person
- You did not intend to deceive anyone
People make innocent mistakes in creating complex documents all of the time. Under no circumstance can making a mistake on a document qualify as forgery, even if the document caused someone to lose money or successfully deceived someone.
You are also allowed to sign for people who give you permission to use their signature. Many workplaces have e-signature systems where workers can legally provide the signature of one of their coworkers (with their permission). This is not a crime.
Lastly, there may have been another reason for you falsifying a document that does not involve deceiving another. Maybe, for example, you were trying to prank your friend by showing them a large (falsified) paycheck that you received from your employer. Unless you try to deceive someone with the check, it is not a crime to falsify the document for another purpose, such as making a joke.
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Nursing License Suspension/Revocation in California
Under What Circumstances Can a Nursing License be Suspended or Revoked in the State of California?
In California, the ability to suspend or revoke the license of a vocational nurse is delegated to the Board of Vocational Nursing and Psychiatric Technicians of the State of California. It consists of 11 members who make the ultimate decision on whether or not a registered nurse deserves punishment, and if they do, there are 3 main ways the board may do this.
- The board may place a license under probation, meaning that the nurse can still practice with the probationary license that typically comes with some type of added terms or conditions (EX: nurse must attend rehabilitation, psychological treatment, etc)
- The board may temporarily suspend a license for a period not exceeding one year.
- The board may permanently revoke a license.
California Business and Professions Code Section 2878
In order for a license to qualify for suspension or revocation, there are certain criteria that it must meet as outlined in California Business and Professions Code Section 2878. Having said that, the language used in the code is quite vague and gives the board a substantial amount of freedom when making their decision.
Under the code, any "Unprofessional conduct, which includes, but is not limited to..." is grounds for the board to suspend or revoke a nursing license. In addition to the wide tent that this language creates, BPC Section 2878 also outlines specific actions that could lead to suspension or revocation. Some of these include:
- Gross negligence, incompetence, or excessive force used on a patient
- The use of advertising relating to nursing (violates section 17500)
- Failure to maintain patient confidentiality
- Fraudulently producing or signing documents
- Impersonating a medical practitioner
- Participating in the act of or administering a criminal abortion
- Committing any crime relating to the duties of nursing
- Any act involving dishonesty that is related to the duties of nursing
- Any unlawful use or administration of controlled substances
- Failure to report another licensee for committing an infraction
After a suspension period, the board will conduct a review of the nurses' actions and reinstate the license if no infractions were committed. If a nurse chooses to practice with a suspended license, that is grounds for immediate and permanent revocation of said license.
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False Imprisonment of a Hostage to Avoid Arrest PC 210.5
California Penal Code 210.5 False Imprisonment of a Hostage to Avoid Arrest
According to California Penal Code Section 210.5 False Imprisonment of a Hostage to Avoid Arrest, it is illegal to falsely imprison another person for the purposes of using him as a human shield or trying to avoid arrest, thereby increasing the risk of harm to that person.
Elements of Crimes Involved With PC 210.5 False Imprisonment of a Hostage to Avoid Arrest
The prosecutor must be able to establish the following elements to convict the defendant under California PC Section 210.5:
- Defendant faced a risk or threat of imminent arrest
- Defendant confined restrained or detained another person by force or threat of force
- Defendant intended to protect himself against the threat of imminent arrest by restraining another person
- Defendant made another person go or stay somewhere against that person's will
- Defendant either intended to use another person as a shield or substantially increased the risk of psychological or physical harm to that person.
Legal Defenses to California PC 210.5 charges
- The victim wasn't falsely imprisoned
In case the defendant had the alleged victim's prior consent to restrain or confine him, then he can't face criminal charges under PC Section 210.5. The defendant must act against another person's will for being convicted of false imprisonment of a hostage.
- The victim didn't face any increased chance of harm or injury
One of the elements of false imprisonment of a hostage crime is subjecting a victim to an increased risk of harm or injury. In case the defendant had no means to actually harm the victim, even if he threatened it, he may be able to skip a PC Section 210.5 conviction.
- The defendant was forced to falsely imprison the victim
In some cases, false imprisonment situations are very complicated. In case the defendant was forced by another person to falsely imprison a hostage then he may be able to build a legal defense to the PC Section 210.5 charges.
Penalties for Falsely Imprisoning Another Person to Avoid Arrest California PC 210.5
Under California Penal Code Section 210.5 falsely imprisoning another person to avoid arrest is a felony, punishable by:
- Three, five, or eight years in county jail.
The defendant can also face additional penalties such as fines, criminal restitution to the victim, the increased penalty for future crimes, the possibility of facing civil lawsuits, adverse consequences for immigration, or professional license issues.
Defendant may qualify for a probation sentence, a suspended sentence, or a split sentence. The probation mainly depends on the case facts as well as the defendant's criminal history.
If found guilty under California Penal Code Section 210.5 the defendant will be entitled to earn up to 50 percent credit off of his sentence for good behavior.
Additionally, depending on the facts of the case defendant can be charged with the following crimes in connection with falsely imprisoning another to avoid arrest:
- California Penal Code Sections 236, 237: Felony or Misdemeanor False Imprisonment
- California Penal Code Sections 209(a), 209(b): Kidnapping
- California Penal Code Sections 664, 210.5, 236 : Attempted False Imprisonment of Hostage
- California Penal Code Section 211: Robbery
- California Penal Code Sections 242, 243: Battery
- California Penal Code Section 4503 Holding a Hostage
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Penal Code 148.5 PC Making a False Report of a Crime
California Penal Code section 148.5 PC states, "Every person who reports to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, the Attorney General, or a deputy attorney general, or a district attorney, or a deputy district attorney that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor."
What Constitutes a Violation of Penal Code Section 148.5 PC?
In order to be criminally charged with making a false report of a crime, you must have satisfied the three elements that are required to constitute a violation of Penal Code 148.5 PC. The three elements are the following:
- You or a third party made a report of a misdemeanor or felony
- You or a third party made the report to an "authority"
- You either:
- Made the report based on false information OR
- Supported a criminal report made by a third party with false information
Penal Code section 148.5 PC only encompasses misdemeanors and felonies, meaning that making a report of an infraction would not violate this law. It is required that you knew that the misdemeanor or felony was based on false information, meaning that merely making a mistake and reporting a crime that you truly thought occurred would not be a violation of PC 148.5.
The law defines a figure of "authority" as anyone who is delegated by the state to accept criminal reports. This includes police officers, emergency line operators, prosecutors, a grand jury, etc.
Keep in mind that you are not required to make a false report yourself to be charged with the crime. If a 3rd party makes a criminal report, whether it actually happened or not, then you could be charged with violating PC 148.5 if you made a false statement at any point during the investigation.
EX: Your neighbor's car is not at their house one day so they report it as stolen. When the police investigate, they ask you if you saw who stole it. Because you really dislike the landlord of your building, you falsely tell the police that you witnessed the landlord steal the car. You would be guilty of violating PC 148.5 because your statements are inherently reporting your landlord as the culprit even if you didn't make the initial report.
What are the Penalties and Punishments for Making a False Report of a Crime?
Making a false report of a crime is considered a misdemeanor offense in California. This means that you can spend up to 6 months in county jail, and/or pay a maximum fine of $1,000. This crime can also be expunged from one's criminal record upon completion of probation or a jail sentence.
How Can I Defend Myself If I Am Accused of Violating PC 148.5?
There are several common defenses to a violation of PC 148.5. They include:
- You did not know the report or the information that you gave was false
- The report was not made to a figure of "authority"
- The crime reported was not a misdemeanor or felony offense
Even if you gave false information in a criminal report, it is required that you knew that your statements were false. Mistakenly giving a false statement is not a crime.
The statute also specifies that the false report must be made to someone who is delegated by the state to accept reports of crimes. For instance, if say you made a false report to a security guard at a night club, not to an actual police officer. This would not be considered a violation of PC 148.5.
Lastly, it is required that the crime in question was a misdemeanor or felony, meaning that minor infractions would not be counted. Falsely reporting a nearby car of failing to signal when changing lanes would not constitute breaking this law because the traffic violation was not a misdemeanor or felony.
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How to Legally Open a Marijuana Cultivation Facility in California?
Legally Opening a Marijuana Cultivation Facility in California
The State of California requires cultivators to gain local approval before they consider giving them a license. Local ordinances can vary by municipality, and some areas do not permit marijuana cultivation at all, such as Fresno.
While the process is different depending on the area one wants to grow in, the city will generally ask that a cultivator provide a business plan, security plan, finance plan, and any other general information about the cultivation premises. This also includes the following environmental codes, which also can vary by city. Wastewater management, conservation regulations, and other environmental issues all fall under this.
Business and Professions Code 26050
According to Business and Professions Code 26050, there are 16 different types of cultivation/manufacturing licenses, some of which must be held at the same time depending on a variety of factors.
The size of the cultivation facility, the amount of plants, the type of lighting, and the type of cannabis product being made are what determine the license(s) one must obtain. For bigger operations, the licenses granted by the state are limited in number. It is also possible for the state to limit the number of licenses in an area if the concentration of cannabis-related businesses becomes too high.
Requirements for Obtaining a Marijuana Cultivation License
Business and Professions Code 26051.5 outlines the requirements for obtaining a license. One must provide fingerprint information and pass a background check, documentation of the legal right to occupy the land, evidence that the operation follows local and statewide zoning ordinances, and a detailed description of the growing methods, business practice, quality control, and security.
Lastly, given that the cultivation operation is meant for selling cannabis, not just for personal use, the cultivator will need to obtain a seller's permit, which is outlined in Business and Professions Code 6001. The seller's permit ID must be provided before obtaining any cultivation license.
Choosing the type of cultivation/manufacturing license(s) one must obtain is dependent on the size of the cultivation project, whether the plants are grown inside or outside, and the type of cannabis product being made. For example, if a grower has a 7,500 square foot indoor operation, and also makes cannabis concentrates and hash, they must get a type 2a cultivation license, and also get a type 7 manufacturer's license to make the concentrated products.
When the type of license is chosen, the steps to obtain it are fairly consistent between them all. It requires one to follow all local ordinances, pass a background check, provide a business, security, and financial plan, and obtain a seller's license.
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Civil Compromise in California Law: PC 1377 & PC 1378
Civil Compromise: California PC 1377 and PC 1378
Under California Penal Code Sections 1377 and 1378 a civil compromise is a method that allows people charged with misdemeanors to have their cases dismissed after compensating the victims for the caused damages. When the case is not connected with the violence and includes property damage and the victim is cooperative, the defense can make a motion to dismiss the case after showing proof of fully paid restitution. Typically, as a result of a civil compromise, only misdemeanor charges can be dismissed. Felony charges are inappropriate for civil compromise since severe crimes harm and endanger and the entire community, not only the victim, and payment the compensation to the victim will not redress the harm done to the society. Generally, civil compromise is only available when the same illegal act results both in criminal and civil liability.Benefits of a Civil Compromise
The Benefits of Civil Compromise for the Victim:
The victim is compensated for the caused damages and losses sooner and more effectively, and he doesn't have to come to court to testify for a trial or hearing.The Benefits of Civil Compromise for the Defendant:
The defendant can get a full dismissal of his criminal charges and will not have a conviction on his record. The defendant will also avoid further consequences such as jail time, additional fines and fees, probation, and community service. A full dismissal of the criminal case will help the defendant to avoid immigration issues.The Following Procedure Occurs After the Victim Is Reimbursed for the Damages:
- The victim must in person or by written declaration appear before the court where the criminal case is pending and acknowledge that he has received full compensation by the defendant for the caused damages.
- The victim must also convey that he is desirous of prosecution
- In case the court is satisfied it can order that all criminal proceedings be dismissed and to discharge the defendant. The court's order to discharge the defendant and the reasons for it must be entered into the record.
- Though even if the victim has been reimbursed and the judge accepts the Civil Compromise, the prosecutor can still disagree and bring criminal charges against the defendant.
The List of Offenses, Excluded From Civil Compromises:
- PC Section 1377(b): Offenses committed upon a peace officer while executing the duties of his office.
- PC Section 1377(c): Offenses committed with intent to commit a felony.
- PC Section 1377 (b): Offenses committed riotously.
- PC Sections 273.6 or 273.65: Offenses committed in violation of any court order.
- PC Section 368 and Welfare and Institutions Code 15656: Offenses committed upon an elder.
- PC Section 13700 and Family Code Section 6211(b): Offenses committed in a domestic violence matter by or on a family or household member.
- PC Sections 647.6 or 11165.6: Offenses committed upon a child.
In California Civil Compromise Is Most Effective in Dismissing the Following Charges:
- PC Section 459.5: Shoplifting
- PC Section 484(a): Petty theft
- PC Section 594: Vandalism
- PC Section 503: Embezzlement