Los Angeles Criminal Defense Attorneys are frequently confronted with the question of what constitutes a robbery: If the suspect steals some items from a store, and then chased by security does the conduct constitute a robbery or a petty theft?

California robbery laws are defined by the legislature in Penal Code Section 211: the crime is the taking of property from a person by using force or threats. The famous People vs. Estes decision that interpreted Penal Code Section 211 further expanded this definition, holding that a defendant who is running away (having shoplifted property from a store without force or fear) becomes a robbery suspect when he uses force or threats to dissuade security from detaining him.

The sentencing difference between a petty/grand theft and a robbery is important, as the former is typically a misdemeanor, while the latter is a felony that usually carries substantial prison time.

A recent Court of Appeals decision further discussed how a defendant’s forcible retention of stolen property in a victim’s presence constitutes robbery, even if the victm was not present when the defendant initially gained possession of the property, the California Supreme Court ruled yesterday. The Court held that sufficient evidence existed to support Alfonso Gomez’s conviction for robbery after he broke into a restaurant and fired gunshots at an employee who pursued him.

Gomez broke into an Anaheim restaurant and stole money from an ATM, but a restaurant employee saw him leave the building and followed in his truck. When Gomez noticed the employee, he fired two shots at the truck from a distance of 100 to 150 feet, and the employee drove away.

A jury later convicted Gomez of robbery. Gomez contended the evidence was insufficient to support his conviction because the employee was not present when he initially took the money.
However, the Court of Appeal upheld the conviction, concluding that Gomez’s use of force to retain the stolen property and remove it from the employee’s immediate presence was sufficient to support the robbery conviction.

The Penal Code defines robbery as the taking of personal property by force or fear from a victim or from the victim’s immediate presence. The Court explained that that the “taking” involves both the actual achievement of possession, or “caption,” and the carrying away, or “asportation” of the property. Citing People v. Anderson (1966) 64 Cal.2d 633, which held that the use of force or fear during asportation was sufficient to transform a peaceful taking into a robbery, and People v. Cooper (1991) 53 Cal.3d 1158, which held that asportation continues as long as the stolen property is being carried away to a place a temporary safety, Corrigan reasoned:

“[R]obbery is a continuing offense. If the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery.”

Following this logic, the court held that if the “force or fear” element of robbery could arise for the first time during asportation, the “immediate presence” element could also arise for the first time during asportation as well.

In support of her reasoning Corrigan cited People v. Estes (1983) 147 Cal.App.3d 23 and Miller v. Superior Court (2004) 115 Cal.App.4th 216, which both upheld robbery convictions for
defendants who used force to retain stolen property in the victim’s presence.

Explaining that the victim’s “immediate presence” was the area within “reach, inspection, observation or control” of the victim, so that the victim could retain his possession of his property if he were not overcome by violence or prevented by fear, the court concluded that “[a] victim who tries to stop a thief from getting away with his property is in the presence of the property.”

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A recent California Appellate Court holding in a traffic stop case reversed a conviction for possessing a large quantity of marijuana.

For Los Angeles Criminal Attorneys practicing in Southern California courts, this is an important ruling for defending the constitutionality of traffic stops based on untested informants’ tips, litigated as Search and Seizure Motions pursuant to Penal Code Section 1538.5.

The court ruled as follows: A border patrol officer who randomly selected and stopped the closer of two U-Haul trucks he observed after receiving a tip about suspicious activity involving such a truck lacked a reasonable suspicion of illegal conduct to justify his actions.

Holding that the trial judge should have granted Ruben Lopez Reyes’ motion to suppress evidence of 235 large bundles of marijuana U.S. Border Patrol agent James Bondanza found when he stopped and searched the truck Reyes was driving, the Court of Appeal reversed Reyes’ conviction for transporting marijuana and remanded the matter to the trial court to allow him to withdraw his plea of no contest.

Agent Bondanza was in a marked vehicle on a road just south of the Interstate 8 freeway in March 2007 when an unidentified driver approached him and said that he had seen a U-Haul truck stop on the side of the freeway, meeting two individuals who emerged from behind a bush. The witness said he could not see whether the individuals had entered the truck, but told Bondanza that it had then continued to proceed east on the freeway.

Despite having never before received information from the witness and having no way to verify the tip, Bondanza believed the witness and drove west on the freeway, looking for the truck. After driving about two to three miles, he saw two U-Hauls proceeding east on the freeway, approximately one mile apart, so he turned around and followed the closest one.

Observing that Reyes “appeared nervous,” and slowed from 80 to 45 mph, Bondanza initiated a traffic stop. After another officer arrived with a canine that sniffed the truck and “alerted” that drugs were present, Bondanza searched the rear and found the bundles of marijuana wrapped in cellophane.

Following Ulloa’s denial of Reyes’ motion to suppress the evidence, Reyes entered a negotiated no contest plea and the court sentenced him to three years in prison.

The defendant then appealed, contending that his detention had been illegal for lack of reasonable suspicion, and the Court of Appeal, in an opinion by Justice Patricia D. Benke, agreed.

Quoting U.S. Supreme Court precedent, she wrote that “Border Patrol agents have no part in enforcing laws that regulate highway use,” and that agents “may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.“

Pointing out that factors to take into account include the area’s characteristics of the area, the proximity to the border, information about recent illegal border crossings in the area, the usual traffic patterns on the particular road, the officer’s previous experience with alien traffic, the driver’s behavior, and the aspects of the vehicle itself, Benke wrote that “there was no evidence concerning any of these factors except Bondanza’s testimony that Reyes’s apparent nervousness–which Bondanza observed for no more than three minutes–and a dramatic reduction in speed were consistent with alien and narcotics smuggling.”

Benke then turned to the remaining basis of Bondanza’s suspicion—the tip from the unidentified driver. Although she wrote that exigent circumstances may justify a stop despite the inability to corroborate the informant’s reliability, she concluded that no exigent circumstances existed.

“Furthermore,” she added, “the anonymous tip neither identified a determinate person nor described illegal activity.”

Benke continued:

“Bondanza stopped the U-Haul Reyes was driving simply because it was closer than the other U-Haul. There was no evidence as to when the unidentified driver saw the U-Haul, how long after the driver’s report Bondanza saw the U-Haul, whether there were any intervening freeway entrances and exits, or any other factor that might provide a reasonable basis for this choice….

“The trial court erred by denying the suppression motion.”

Los Angeles Criminal Lawyers should be aware of this and other decisions in the area of Search and Seizure Law, to be prepared to successfully litigate motion pursuant Penal Code Section 1538.5.

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People on the street ask criminal defense lawyers - how can you represent a murderer? The Law Blog’s frequent response is that a client is just accused of murder, and may actually be innocent. The next question may be - How is this possible? Hasn’t the police done its job and gone after the right person? A criminal lawyer obviously reviews each client’s defense on a case by case basis - and his or her job is to provide a zealous defense, to ensure that the prosecution has proven its case. Sometimes the police, the prosecution, and even the jury get it wrong: garbage in, garbage out.

In other words, if the evidence in a case is somehow wrong, or misleading as to what actually happened, then the result could be just as incorrect. A recent case in Southern California illustrates the point of how effective criminal defense helps the innocent. In San Diego, California, a widow was accused of poisoning her husband, for insurance money. The prosecution further alleged that she used the insurance proceeds, not on her kids, but on plastic surgery, multiple lovers, and large parties. Further the evidence showed that she appeared to not be grieving after her husband died and, ultimately, was convicted by jury of his murder.

After the jury verdict, Defendant Cynthia Sommer hired a different criminal defense attorney - who may have been asked “how can you represent a convicted murderer, an evil woman?”

As a result of the new lawyer’s efforts, and after his client Cynthia Sommmer had spent close to 3 years in custody, San Diego County Dist. Atty. Bonnie Dumanis moved to dismiss murder charges against her, telling reporters that overlooked evidence and new scientific scrutiny had poked holes in the prosecution’s assertion that she used arsenic to kill her husband. It was a startling conclusion to a murder prosecution built on a tabloid-style scenario of a scheming wife poisoning her younger husband, watching as he died and then — soon after — getting a $5,400 breast augmentation, partying and having sex with several partners. Within hours of Dumanis’ announcement, Sommer was free. “I never lost any hope, faith or anything….You can never give up if you’re innocent,” she told the press.

In November 2007, a jury had convicted Sommer of first-degree murder, but the trial judge overturned the verdict, ruling that prosecutors’ description of her “lifestyle” was so inflammatory that it deprived Sommer of a fair trial. She had been convicted of murder with special circumstances — murder for hire and murder by poison — that carried a mandatory life sentence without possibility of parole. Deceased Todd Sommer, 23, was stationed at Miramar Marine Corps Air Station and appeared to be in excellent health when he fell ill and died within days in 2002. Married in 1999, the couple had a son. Cynthia Sommer had three children by a previous marriage.

When she was arrested in 2005, she had moved to Florida. Prosecutors had said Sommer killed her husband to collect on his $250,000 life insurance policy and begin a new, fun-filled life. She had remained in jail while prosecutors prepared for a second trial. In response to a discovery motion by Sommer’s new defense attorney, prosecutors gathered all the tissue samples that had been taken from her husband’s body, including some that were not tested before the first trial. When they had the new samples tested, forensic experts could not find arsenic — creating what D.A. Dumanis called reasonable doubt that Todd Sommer had died of arsenic poisoning. An expert newly hired by the prosecution also suggested that earlier samples in which arsenic was found had been contaminated. The new criminal lawyer told the press that it should not have taken a defense motion to make prosecutors gather samples that had remained at the San Diego Naval Medical Center since Todd Sommer’s death.

During the jury trial resulting in the wrongful conviction, San Diego County Superior Court Judge Peter Deddeh told prosecutors he would not allow evidence about Sommer’s behavior after her husband’s death. But Deddeh relented when defense attorney Robert Udell opened the door by introducing his own evidence of Sommer as a grieving widow. After the conviction, Deddeh ruled that her attorney’s error had deprived Sommer of a fair trial.
The evidence about her breasts, drinking and sexual activity “became like an overwhelming cloud that covered everything,” said her new attorney. Even as both sides prepared for a second trial, prosecution investigators were again asking Sommer’s friends questions about her behavior after her husband’s death, the new criminal defense lawyer said. He was prepared to call experts who would suggest that Todd Sommer died of a heart ailment or reaction to weight-control pills or an anti-diarrhea prescription medication.

So even in 2008 there is a risk that without a zealous and thorough criminal defense, a person may be convicted and yet be completely innocent of the charges.

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A successful Pitchess Motion may at times be a powerful tool for defense counsel.

Defendants are entitled to relevant “discovery,” ie. police reports and witness interviews, contained in the personnel files of an arresting officer. Typically, Los Angeles criminal attorneys file this motion before the preliminary hearing in cases where there are allegations made against arresting police officers of racial discrimination, excessive force, or some other misconduct which is relevant to the “defendant’s ability to defend against a criminal charge.” The right to access police personnel records was recently addressed by the California Supreme Court in Garcia v. Superior Court (City of Santa Ana) (2007) 47 Cal.4th 63,69.)

As most California criminal attorneys know, Pitchess motions are a critical discovery tool when one is dealing with police misconduct or improprieties. Upon a showing of good cause, the defense is entitled to obtain relevant documents or information in the records of a police officer accused of misconduct against the defendant. A showing of “good cause” requires a logical link between the old, and the pending charge, as well as, articulation of how the discovery being sought would support a defense and/or how the information would impeach the officer’s version of events. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021). Also, a judge must conduct an in camera hearing, ie. in his chambers, to determine which, if any, information should be provided to the defense. Typically, the judge simply provides the name and address of a prior citizen complainant requiring the defense to hopefully track the person down for an interview. Unfortunately, the erosion of this law has led to Evidence Code section 1045 prohibiting the release of any information related to complaints that are filed more than five years prior to the curent incident.

If a criminal defense attorney is able to track down a prior complainant, that person may be used by the defense to show that the officer has a pattern of misconduct. This information is very useful in a jury trial, or even during plea bargaining to get the current charges reduced. In sum, criminal attorneys have a powerful weapon to defend against police misconduct, but unfortunately it applies under limited circumstances.

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In most instances when the police decide to search a home, the Constitution requires law enforcement to have a preapproved search warrant. A search warrant provides a justification, prescreened by a judge, explaining why the police can invade the privacy of someone’s house. When the justification is insufficient, the judge denies the search warrant and the police cannot search with the court’s blessing.

Several exceptions exist to the warrant requirement that are frequently litigated by way of Penal Code Section 1538.5 Motions in Southern California courtrooms. These are also referred to as Search and Seizure Motions, or Motions to Suppress Evidence, by Los Angeles criminal defense lawyers and prosecutors. The emergency exception to having a search warrant is one basis law enforcement frequently falls back on to justify the search of a home without a warrant. The basic rule of law is that to justify a warrantless entry by law enforcement in an emergency situation: (1) under the totality of the circumstances, law enforcement must have an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.

In January of 2008, a Federal Appeals Court (9th Circuit) ruled on a situation dealing with the Emergency Exception to having a Search Warrant. In the U.S. v. Snipe court case, the police responded to a 5 a.m. call from a “hysterical sounding” male screaming, “get the cops here now.” One of the responding officers, who lived in the neighborhood, noted a vehicle he did not recognize as well as an individual he did not recognize running or walking into the residence. The residence looked suspicious because the lights were on. Entering without a warrant, the officer and his partner observed several people seated around a kitchen table on which there appeared to be a large quantity of drugs. After determining that there was no emergency, the police left and obtained a warrant based on their observations. A subsequent search of the residence pursuant to the warrant produced a firearm with an obliterated serial number. Under the two-pronged test formulated by the U.S. Supreme Court in Bringham City v. Stuart (whether the circumstances, viewed objectively, justify the search and whether the manner of entry was reasonable), the appellate court found that the trial court did not err in denying appellant’s suppression motion.

The question for L.A. criminal defense attorneys is to what extent can this case be massaged by the law enforcement to justify searches without warrants. The following questions would be significant to note in future cases, to distinguish them from this above facts. What if the responding officer did not note an unusual car, or a person walking around that he did not recognize? What if the caller to the police was not hysterical? At some point the emergency justification would dissipate, and the police officers entry into a home would require a search warrant in advance. The LA Criminal Law Blog will continue to review Court of Appeal, and Supreme Court decisions, as there is a need for continued litigation in Southern California courts as to the propriety of police conduct during criminal investigations.

Finally Los Angeles Criminal Lawyers can compare the Snipe decision, to the new People v. Hua holding by the California Court of Appeal - finding that probable cause to believe that a nonjailable offense is being committed does not justify a warrantless entry into the home in order to prevent destruction of evidence. Police responded to a call regarding a “noise disturbance” at an apartment. Upon arrival they detected the “distinct odor” of marijuana and, looking through the front window, saw several people socializing in the living room and one person whose conduct was consistent with someone smoking marijuana. The police knocked and when appellant opened the door, they observed smoke inside. Concerned that evidence as to possession of marijuana would be destroyed, they entered the residence. Once inside, they conducted a protective sweep for “safety” purposes and discovered 46 growing marijuana plants and a cane sword on the top bookshelf in the living room. The appellate court reversed the denial of the suppression motion, finding the entry into the apartment unjustified as the suspected offense was a minor, nonjailable offense, of a nature insufficient in gravity to support warrantless entry. The Court cited the following opinions for support: Welsh v. Wisconsin (1984) 466 U.S. 740; Illinois v. McArthur (2001) 531 U.S. 326; rejecting People v. Robinson (1986) 185 Cal.App.3d 528.

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Federal criminal authorities continue to enforce marijuana laws in Southern California, serving search warrants on dispensaries, seizing medicinal products and monies, and arresting employees, buyers, and store owners. These federal criminal laws are in direct conflict with the California Compassional Use Act. Los Angeles Criminal Defense Lawyers are frequently hired to fight possession, sales, and transportation of marijuana charges in local California Court.

A frequest defense approach is to cite in court Proposition 215, the Compassionate Use Act of 1996, which is codified in Health & Safety Code § 11362.5. The Act provides, in relevant part: Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. Further, it is now well established that the proposition created an affirmative defense to a marijuana possession or cultivation charge for a patient who possessed an amount of marijuana “reasonably related” to his or her “current medical needs.” The holdings in the appeals Courts establish this law (See People v. Trippet (1997) 56 Cal. App. 4th 1532, 1549; People v. Frazier (2005) 128 Cal. App. 4th 807, 824) Also, the courts have recognized that the scope of “the ‘patient’s current medical needs’ must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician’s opinion regarding the frequency and amount of dosage the patient needs.” Trippet, 56 Cal. App. 4th at 1549; Frazier, 128 Cal. App. 4th at 824. In order to establish a defense, the defendant must have obtained a physician’s recommendation before his or her arrest. People v. Rigo (1999) 69 Cal. App. 4th 409, 412-13.

In 2003, the California legislature enacted the Medical Marijuana Program Act (MMPA), which became Health & Safety Code §§ 11362.7 et seq. Intended as a “clean up” bill, the MMPA primarily established an identification card system to help insulate bona fide medical patients from arrest for possessing marijuana. However, the MMPA has one provision that works to substantively amend Proposition 215. Section 11362.77 provides:

(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.

(b) If a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs.

(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).

When compared to the broad language of Proposition 215, the MMPA’s regime disadvantages defendants who wish to raise a medical defense. Pursuant to Rigo, a defendant under the Proposition 215 scheme must have a preexisting doctor’s recommendation that she use marijuana to treat a medical condition. But the defendant may use any evidence to prove that the amount in her possession was reasonably related to her medical need. Trippet, 56 Cal. App. 4th at 1549. Such evidence would include a physician’s opinion, regardless when that opinion was rendered. Under the MMPA, on the other hand, if the defendant possesses an amount greater than the limits set forth in § 11362.77(a) or (c), the preexisting doctor’s recommendation itself must establish the amount the patient needs. In short, the MMPA adds an extra hurdle for defendants who possess more than the MMPA’s new limits: such a defendant must have a preexisting doctor’s recommendation that she use an amount of marijuana that justifies the quantity found in her possession.

L.A. criminal lawyers may try to apply the medicinal marijuana defense to clients that were in possession of greater than eight ounces of marijuana. A defendant who allegedly possessed more than § 11362.77’s limits may move to preclude application of the limits so that the defendant may present any relevant evidence to show that the amount she possessed was “reasonably related” to her medical needs. Such motions have succeeded in several counties.

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LAPD homicide investigators continued their investigation for close to thirty years of a homicide of a 28-year-old Japanese tourist Kazumi Miura, shot in the head next to downtown’s four-level freeway interchange. They have continuously pursued her husband, Kazuyoshi, for the 1981 crime. But he remained beyond their reach, as Japanese authorities tried and convicted him of murder, only to see the case overturned. Because he was acquitted on appeal for the murder in Japan, he could not be extradited to the United States.

Finally in February 2008, the investigators no longer needed to pursue Extradition from Japan because they received a tip from the suspect’s perosnal blog that he would be visiting Saipan, a United States’ territory. Since 2005, police had been monitoring postings by Miura, who had become an outsized Japanese personality because of media coverage of his alleged crimes. On one website, Miura promotes himself as a human-rights advocate who helps those falsely accused of crimes. He also publicizes his book and a DVD about his case and holds gatherings featuring alleged victims of wrongful prosecution and other guests, whom he charges about $30 to attend. In postings last year, police said, he mentioned international travel plans, including a possible trip to Saipan, a U.S. territory and popular tourist destination north of Guam.

Learning of the suspect’s plans, detectives alerted Immigration and Customs officials in Saipan to be on the lookout. They apparently missed his arrival, but immigration agents on the island nabbed Miura, now 60, last Friday when he attempted to leave for Japan.

LAPD detectives say they have a strong circumstantial case, built on evidence they helped prepare for the prosecution that initially succeeded in Japanese courts. The arrest and trial to come will bring the long, twisting saga — a Japanese version of the O.J. Simpson case, featuring allegations of a hit man, a conspiracy with a former adult actress and a $650,000 life insurance policy — back to where it began, and back into the media eye.
At Los Angeles police headquarters Thursday, detectives were briefing a Japanese television team on the case. Twelve more camera crews waited in the lobby.

It was about noon in the fall of 1981, Kazuyoshi Miura said, and he was snapping photos of his young wife Kazumi on Fremont Avenue, beside the Harbor Freeway, when she fell to the pavement, apparently shot in the head. He said that as he ran to her, he felt his left thigh burning and realized he also had been hit. “Without any contact or asking, they just started to shoot,” Miura told a reporter from his hospital bed. “To do this, just for $1,000. What is this all about?” He blamed America’s culture of violence and said he would write protest letters to the president, the governor and the mayor. “Many Japanese will be coming to the U.S. with a dream on their hearts. I strongly hope this accident will never occur again,” he told one group of reporters. The .22-caliber round that struck Kazumi left her in a coma for a year. The U.S. Air Force flew her back to Japan, where she died in November 1982.

At first, Kazumi’s death appeared to make the case that no one was safe in Los Angeles, then struggling to control drug and gang violence. But as L.A. police and Japanese reporters dug deeper, darker details began to emerge. There had been an attempt on her life three months before she was shot.
Miura had allegedly plotted with a former Japanese adult-film actress, who came to Los Angeles and pretended to be a seamstress. The actress, Michiko Yazawa, visited Kazumi in her room and struck her in the head with a hammer.

Despite the suspect’s claims of being attacked by third parties in 1981, the evidence against him includes being involved in previous attempts at her life, and the motive to collect the life insurance taken on her. While the evidence may be compelling, Southern California criminal defense lawyers are concerned about the state’s attempt to reprosecute someone who has already been acquitted in Japan. This is a Double Jeopardy issue which is troubling from the perspective of U.S. Constitutional Law. The state should not have two bites at the apple according to our Constitution. The Law Blog understands that Japan is a different jurisdiction, and may have completely different procedures. However, the evidence failed one time, and the suspect has already been through the ordeal of one trial. Should he be subjected to a new prosecution? California criminal law authorities believe he should.

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A recent study focuses on how the state of California deals with those people who were sent to prison, and were later exonerated.

A reviewing commission concluded that California does a poor job of compensating people wrongfully convicted in its courts. Men and women imprisoned for years, even decades, for crimes they didn’t commit are offered fewer benefits than convicts released on parole.

Exonerated prisoners “face many difficult obstacles to full restoration of their rights and liberties, and the compensation they receive for their losses is frequently inadequate,” said the California Commission on the Fair Administration of Justice, a state body chaired by former California Atty. Gen. John Van de Kamp that has been studying the problem of wrongful convictions.

The commission, which includes prosecutors, defense lawyers, law professors and law enforcement officials, recommended a number of reforms, including giving wrongly convicted men and women state assistance in locating housing, a cash allowance, clothing and employment counseling. But the proposals would hardly open the floodgates. The compensation, “should be limited to those who have been found innocent of the crime or crimes for which they were convicted and imprisoned, not because of procedural errors in their trials,” the panel said.

The commission also recommended that:

* Exonerated prisoners be permitted two years rather than six months to file compensation claims.

* The maximum compensation be increased from $36,500 to $50,000 for every year of incarceration.

* People who gave false confessions or forced guilty pleas be allowed to seek a court determination of factual innocence, the gateway to compensation.

* The deadline for a wrongfully convicted person to sue his trial lawyer for malpractice should be pushed back. The commission said the recent case of Peter Rose, who was wrongfully convicted of the kidnap and rape of a 13-year old girl in November 1995, demonstrates the need for this reform.

Rose’s conviction was vacated in October 2004 after he was exonerated by DNA testing. He filed a complaint against his original defense lawyer, alleging that the lawyer’s negligence contributed to his wrongful conviction. But the suit was dismissed because it was not filed within the statute of limitations, “even though the court conceded that he could not have recovered on his claim until his conviction had been vacated,” the commission report said. Rose is one of 15 wrongfully convicted individuals who have been compensated by the state. The state has denied 25 claims and dismissed an additional 19 because they were untimely, incomplete or the claimant had not been released from prison.

Commissioners also recommended that the state resume funding for the Northern California Innocence Project at Santa Clara University Law School and the California Innocence Project at Cal Western Law School in San Diego, the primary legal groups in the state fighting to overturn wrongful convictions.

The Legislature in 2001 allocated $1.6 million over two years to provide lawyers to assist inmates with innocence claims. The legal assistance funding was eliminated in 2003 because of state budget cuts.

To date, the two Innocence Projects “have succeeded in helping to exonerate 11 people, two based on DNA evidence and nine on other grounds. Each exoneration has saved the state the cost of housing an innocent person,” the commission said. The group also pointed out that the 1996 exoneration of Kevin Green, an Orange County man who spent more than 15 years in prison for the assault on his wife and murder of their unborn child, led to the conviction of the real murderer and rapist.

The report said the two Innocence Projects are now actively investigating 288 cases and have a backlog of 700 cases.

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Los Angeles Criminal Defense Attorneys hear many stories from clients about officers being too aggressive, coercing consents to search, forcing Miranda statements, and even planting evidence. LAPD Internal Affairs is supposed to investigate all complaints of police misconduct. Some say that how can LAPD police and thoroughly investigate its own.

A recent report and finding by the Police Commission confirm this claim, concluding that Los Angeles Police Department investigators routinely fail to fully investigate citizens’ complaints against allegedly abusive officers, often omitting or altering crucial information in ways that help exonerate the officers, according to a report to be released today. Further, the report raises questions about the department’s ability to police itself, adding to still-unresolved problems highlighted in previous reports. The audit, which is expected to be presented to the civilian Police Commission today, examined how 60 complaints filed against officers in recent years were handled by the officers’ supervisors and investigators in the department’s internal affairs group. In 29 of the cases — nearly half of the time — it found some sort of flaw, including investigators who inaccurately recorded statements and failed to interview witnesses or identify accused officers. In some cases, investigators failed to address allegations of misconduct at all. ”

In several of the cases reviewed, the report concluded that the investigators’ conclusion that the accusations against officers were “unfounded” would have been different if the investigations had been handled better. In one complaint about excessive force, a witness said in a tape-recorded interview shortly after the incident that there had been too many officers surrounding the man to get a good view of what happened. But in their report, the internal affairs officers paraphrased the witness’ comments much differently, writing that the man “had a clear and unobstructed view and did not see or hear the alleged acts occur.” Problems with paraphrasing in this case and several others, the report found, were the reason the officers were ultimately absolved of any wrongdoing.

In another case, two men said they were injured — one suffered a broken or badly sprained elbow — by a group of officers using excessive force while trying to break up a party. The report faulted investigators for failing to interview two witnesses or retrieve any of the documents on file about the incident. Investigators failed to identify any of the officers involved in the altercation and did not include any photographs of the injuries the accusers sustained — a basic component of an excessive-force complaint.

Better training may be required. Police officers who become members of internal affairs receive only a five-day training course on how to conduct investigations. Complaints are usually filed with a sergeant at a local police station who conducts interviews and passes the claim to internal affairs. Internal affairs handles the more serious cases — several thousand each year.

Los Angeles Criminal Lawyers are able to obtain a police officer’s record of prior misconduct through two sources: (1) The District Attorney’s Brady Unit, set up after the Rampart scandal; and (2) Los Angeles City Attorney’s Office, which represent LAPD in court, after litigating a Pitchess Motion before trial. Both of these procedures are utilized soley within the criminal justice system. L.A. criminal settlement and defense issues are greatly affected when it turns out that one of the investigating officers has a history of misconduct.

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California criminal law requires a unanimous verdict - which means all 12 jurors must agree that the defendant on trial is either guilty or not guilty. If the jurors cannot reach a unanimous decision, the judge declares a mistrial and the DA must decide whether to reprosecute the case or not. In a retrial, the DA would have to call all the witnesses again, bring in all the physical, direct, and circumstantial evidence - in other words, do the trial from scratch, as if the first one never even happened. Obviously, the expense and time is great, and many prosecutors will seek to reach a plea bargain with a defendant, to avoid a retrial. As a result, for most Los Angeles Criminal Lawyers, a hung jury represents a de facto legal victory, which often results in a very favorable case disposition for the criminal client.

One way to avoid a hung jury in the first place is to allow the prosecutor and defense attorney the opportunity to reargue their positions in front of the jury, in attempt to clear up any confusion. This is generally more helpful for the prosecution, and the defense will object to the procedure. Recently the California Court of Appeal ruled a trial judge, in San Joaquin Court, did not abuse her discretion in reopening closing argument in order to break a jury deadlock in a criminal case. The court affirmed a defendant’s robbery conviction, which resulted in a 25-year-to-life prison sentence under the Three Strikes Law. In doing so, it rejected the defense argument that there was no statutory support for the judge’s decision to allow a new round of closing argument after jurors reported that they were deadlocked.

Prosecutors charged defendant with robbing a USA Gas Station in Lodi, with Hayes using a firearm and Young a BB gun that simulated a firearm. A police officer who knew defendant and his family identified him from a photo that was made from a surveillance tape, and the two clerks who were working at the time of the robbery identified him from a photo array. A police detective testified to an unrecorded interview in which defendant
admitted his involvement, said he was sorry, identified a co-Defendant as the other robber, and suggested he would “plead insanity” at trial. At trial in June of last year, the defense did not dispute that defendant was involved, but argued that he should only be convicted of a lesser offense—attempted robbery, grand theft, or petty theft.

On the third day of deliberations, jurors reported they were deadlocked “10 to one to one” and that the lesser charges were a source of their disagreement. The foreperson said that rereading of instructions was not particularly helpful, and that it was unlikely that allowing additional time for deliberations would break the deadlock. When some of the jurors told the trial judge that new arguments might be helpful, the judge, without objection, invited counsel to reargue. The prosecutor focused his second argument on liability based on conspiracy or aiding and abetting, while defense counsel again argued for conviction of a lesser included offense. After something over two hours of additional deliberations, the jury found the defendant guilty of second degree robbery.

The Court of Appeals explained it ruling noting that a rule of court not yet in effect at the time of rial expressly permits the reopening of argument, and held the trial judge acted within her authority under Penal Code Sec. 1094, which grants the trial court broad discretion to depart from the usual order of trial. While a trial judge “must proceed carefully” when dealing with an apparently deadlocked jury, the court wrote, there was nothing in the judge’s remarks to the jury that was coercive or suggested that the trial judge wanted the jury to reach a particular verdict.

Los Angeles Criminal Defense Lawyers specializing in jury trial work should be aware of this decision, and be prepared to provide additional closing argument in the event of a hung jury.

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