Menu Close

Prosecuting Misdemeanors – Part One

George Gascón was sworn in as Los Angeles County’s new District Attorney on Monday December 7, 2020 and becomes the county’s 43rd district attorney. The goal of the Los Angeles County District Attorney’s Office is to protect public safety. As such, District Attorney George Gascón has taken initiative to begin immediate reform of the criminal justice system by implementing a misdemeanor reform policy directive.

What is Considered a Misdemeanor?

In California, a misdemeanor is a crime that has a maximum sentence of no more than one year in county jail. A misdemeanor is more serious than an infraction but is less serious than a felony. Common examples of misdemeanor crimes include DUIs, shoplifting, public intoxication, and petty theft.

A standard California misdemeanor is punishable by up to 6 months in jail and/or a fine of up to $1,000. On the other hand, an aggravated misdemeanor is punishable by up to 364 days in jail and/or a fine of up to $1,000 or more. A misdemeanor is aggravated if the crime is more serious than others. Example of an aggravated misdemeanor include domestic battery, driving on a suspended license, and violating a restraining order.

What Happens Under the Misdemeanor Reform Policy Directive?

The misdemeanor charges specified below shall be dismissed before arraignment and without conditions unless exceptions or factors for consideration exist. As noted, an arraignment is a hearing where the court formally charges a person who has been arrested for a crime. The reform policy took effect on December 8, 2020 and will replace prior policies.

  • Trespass – Penal Code §602(a)-(y)

In California, trespass is established when a person enters or remains on someone else’s property without permission or a right to do so.

Some examples of actions that lead to criminal trespass charges include: a) because of a personal grudge against a restaurant’s owner, entering the restaurant and creating a disturbance that drives other patrons away; b) entering another person’s unused garage without their permission, setting up a sleeping bag, and sleeping there for several nights; and c) threatening to beat up an ex-girlfriend or ex-boyfriend and then, a few weeks later, going to their office intending to behave violently toward them.

The Exceptions or Factors for Consideration to Not Dismiss Charges for Trespass

A trespass charge may not be dismissed should a person be a repeat trespasser on the same public or private property over the previous 24 months, or if the person is a verifiable and imminent safety risk, or if there are no signs of substance use disorder and/or mental illness.

  • Disturbing the Peace – Penal Code §415(1) – (3)

In California, it is illegal for a person to do any of the following things: 1) unlawfully fight in a public place or challenge another person in a public place to fight; 2) maliciously and willfully disturb another person by loud and unreasonable noise; or 3) use offensive words in a public place that are inherently likely to provoke an immediate, violent reaction.

Actions that can result in being charged with disturbing the peace include: a) challenging another person to a physical fight in a bar; b) playing music at a high volume to disturb your neighbors; or c) repeatedly using racial or ethnic slurs in a verbal confrontation.

The Exceptions or Factors for Consideration to Not Dismiss Charges for Disturbing the Peace

Charges regarding disturbing the peace may not be dismissed should a person be a repeat offender over the previous 24 months involving substantially similar behavior to that charged, or if there are no signs of substance use disorder and/or mental illness.

  • Resisting Arrest – Penal Code §148(a)

Under California law, resisting arrest is defined by willfully resisting, delaying or obstructing law enforcement officers or emergency medical technicians in performance of their official duties.

Examples of resisting arrest include: a) struggling with police officers as they try to apply handcuffs; b) taunting an EMT as he/she tries to provide medical assistance to a victim; or c) giving false name to the authorities during questioning.

The Exceptions or Factors for Consideration to Not Dismiss Charges for Resisting Arrest

Charges regarding resisting arrest may not be dismissed should the person be a repeat offender over the prior 24 months involving substantially similar behavior to that charged, or the actual use of physical force against a peace officer was used, or the charge is filed in connection with another offense not detailed above.

  • Criminal Threats – Penal Code §422

In California, it is a crime to communicate a threat to someone that can result in great bodily injury or death. Such threats must place the victim in reasonable and sustained fear for their safety or that of their families.

Examples of criminal threats include: a) threatening to shoot another person while you are holding a gun; b) a recently fired employee calling their former boss and saying something along the lines of, “you and the office staff better watch your backs,”; or c) texting an ex-boyfriend or ex-girlfriend stating that you are going to set fire to their apartment or house.

The Exceptions or Factors for Consideration to Not Dismiss Charges for Criminal Threats

Charges for criminal threats may not be dismissed if the offense is related to domestic violence or hate crime, it is the person’s repeat threat offense over the prior 24 months, there is documented history of threats towards the victim, the person was in possession of a weapon capable of causing bodily injury or death during the criminal threat, or no indication of substance use disorder and/or mental illness.

The charges listed above are not the entirety of the list. In fact, please read our other blog posts (maybe you can hyperlink them here) that make mention of other misdemeanors that will be prosecuted differently as of December 8, 2020.

Prosecutors have discretion to look at other exceptions or factors for consideration if a person poses an identifiable, continuing threat to another individual or there are other circumstances of similar seriousness. The diversion policy will not apply to offenses excluded under Penal Code §1001.95 (a judge in the superior court in which the misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer an alternate to a defendant) and any driving under the influence offenses.

Leave a Reply

Call Now
Text Message