Penal Code 667.95 PC - Willful Video Recording of a Violent Felony
In today's age of social media and on-the-spot video recording with smartphones, it's not uncommon for people to capture and share footage of criminal activity as it unfolds.
While sometimes a crime caught on camera can be used as evidence to convict a person, perpetrators of the crime also sometimes revel in having someone record their acts for adverse purposes, which further victimizes the victim.
With the signing into law of AB 1542 (Jordan's Law), California courts can now consider it an aggravating factor in sentencing if a defendant willfully recorded video of their violent felony in progress "to encourage or facilitate the offense." (Penal Code 667.95 PC)
If you are convicted of a violent felony that you willfully recorded for such a purpose, you can face enhanced sentencing beyond the prescribed penalty for your crime.
PC 667.95 says, "In sentencing a person convicted of a violent felony listed in subdivision (c) of Section 667.5, the court may consider, as a factor in aggravation, that the defendant willfully recorded a video of the commission of the violent felony with the intent to encourage or facilitate the offense."
California Penal Code 667.5 PC has a list of crimes that are considered "violent felonies," such as murder, attempted murder, voluntary manslaughter, kidnapping, mayhem, carjacking, robbery, rape, sodomy, arson, oral copulation, lewd acts with a minor, continuous sexual abuse of a child, and sexual penetration with a foreign object.
The judge involved in the case has the legal right to add additional penalties for anyone involved in a violent crime who videotaped the incident and then posted it on Facebook or another form of social media, either live during the attack or afterward.
However, they are not obligated to enforce additional penalties, and the law is implemented only for 23 violent crimes in California.
What Factors Must Be Proven to Convict?
PC 667.95 addresses the specific scenario where a person convicted of a violent felony willfully records a video of the crime with the intent to encourage or facilitate the offense.
This provision does not create a separate criminal offense but rather serves as an aggravating factor that can enhance the sentencing of the convicted individual.
Specifically, PC 667.95 states that during the sentencing phase, the court may consider willfully recording a video of the commission of a violent felony as an aggravating factor when imposing a sentence.
For prosecutors to demonstrate that your alleged crime qualifies for enhanced sentencing under PC 667.95, they must demonstrate the following elements:
- You committed a "violent felony" as described under PC 667.5(c).
- You recorded or arranged for the recording of the commission of the violent felony on video.
- The recorded video clearly shows the commission of the violent felony.
- You did so willfully; and
- You intended to "encourage or facilitate the offense,"-meaning you recorded the video to promote, aid, or amplify the criminal behavior.
Because PC 667.95 identifies willful recording of a crime as an "aggravating factor" rather than a crime itself, the sentencing enhancement only applies to someone convicted of a violent felony. In other words, prosecutors must successfully convict you of such a crime before the sentencing enhancement can be considered.
What is a "Violent Felony?"
Sentencing enhancement under PC 667.95 only applies if the crime constitutes a "violent felony" under California law. Penal Code 667.5 subsection (c) provides a detailed list of crimes deemed as violent felonies, including but not limited to:
- Rape: As defined in various sections of Penal Code 261 PC.
- Sodomy: Defined under Penal Code 286 PC.
- Robbery: Defined under Penal Code 211 PC
- Oral Copulation: Defined under Penal Code 287 PC or former Section 288a.
- Lewd or Lascivious Acts: Defined under Penal Code 288 PC.
- Felonies Punishable by Death or Life Imprisonment.
- Felonies Involving Great Bodily Injury: As described in Penal Codes 12022.7, 12022.8, or 12022.9 PC.
- Arson: Violations of Penal Code 451 PC.
- Sexual Penetration: Defined under Penal Code 289 PC.
- Assault with Intent to Commit Specified Felonies: Under Penal Code 220 PC.
- Continuous Sexual Abuse of a Child: Defined under Penal Code 288.5 PC.
- Carjacking: Penal Code 215 PC.
- Mayhem: Penal Code 203 and 205 PC.
- Burglary of the First Degree: Penal Code 460(a) PC when it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
- Extortion: Penal Code 518 PC, a felony violation of Penal Code 186.22 PC relating to criminal street gang sentencing enhancements.
- Dissuading or Intimidating a Witness or Victim: Penal Code 136.1 PC, a felony violation of Penal Code 186.22 PC relating to criminal street gang sentencing enhancements.
- 10-20-Life Law: Any violation of Penal Code 12022.53 PC.
- Weapons of Mass Destruction: Penal Code 11418 PC.
What Are the Common Defense Strategies?
AB 1542 does not target those who film crimes as innocent bystanders. The bill's language is designed to protect those who record violent crimes that they see happening or knew were likely to occur.
Suppose you are the person committing the felony and conspire with another person to have the act recorded. In that case, you face an additional year added to your punishment for committing a violent crime.
Suppose you've been convicted of a violent felony, and prosecutors are seeking enhanced sentencing because the crime was recorded on video.
In that case, an experienced California criminal defense attorney will employ legal strategies to mitigate the potential for enhanced sentencing. Some common defense strategies include:
- Lack of Willful Intent: The biggest hurdle prosecutors face in making the video an aggravating factor is not in proving that the video exists but in proving that it was recorded to encourage or facilitate the offense. Thus, a common defense strategy is to disprove these claims, for example, by presenting evidence that the video was recorded unintentionally or without your knowledge.
- Questioning the Validity of the Recording: Arguing that the recording should not be admissible in court due to issues such as tampering, lack of proper chain of custody, or other evidentiary concerns.
- Coercion or Duress: Showing that you were coerced into making the recording under threat or duress can negate the element of willfulness.
Contact our criminal defense law firm for additional information. Eisner Gorin LLP is in Los Angeles, CA.
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