Los Angeles Criminal Law Blog

Arrest Warrants and Illegal Stops

Posted on: December 28, 2008 at 4:32 p.m.

Typically law enforcement must act within the purview of the U.S. Constitution to justify a search of a person, car, or home. Our firm's Los Angeles criminal defense lawyers frequently contest a client's search where we feel the police violated the constitutional requirements. A recent case, however, provides the police a broader basis for searching a car, even though the reason for the stop was illegal where the police are armed with an arrest warrant for the car's passenger.

The California Supreme Court recently concluded that evidence obtained by searching a vehicle after arresting a passenger pursuant to a valid warrant was admissible against the passenger even though the underlying traffic stop that led to discovery of the warrant was illegal.The judges upheld defendant's conviction and four-year sentence for possession and manufacture of methamphetamine.

Defendant was the passenger of a Buick that Sutter County Sheriffs Deputies stopped in 2001 on the basis of expired registration tabs. Although the deputy learned that there was a pending application for the registrations renewal,he directed the driver to pull over in order to investigate the validity of the temporary operating permit taped to the cars rear window. Testimony at a suppression hearing indicated that the deputy approached the cars driver side and asked for the drivers license, and upon recognizingdefendant as a possible parolee at large and verifying that there was an outstanding warrant for his arrest, orderedhim out of the car at gunpoint and arrested him for parole violation.

During a search incident to the arrest,the deputyfound an orange syringe cap on defendant, along with drugs and drug paraphernalia on the driver and in the back seat of the car. Defendant moved to suppress the drug evidence, arguing thatthe detention of the Buick and its driver constituted an illegal seizure of his person that tainted all of the subsequently discovered evidence. In denying the motion to suppress,a Sutter Superior Court Judge held thatdefendant was seized not at the point of the traffic stop but rather whenthe deputycommanded him to get out of the car and placed him under arrest.The defendant then pled guilty, subject to his right of appeal, and was sentenced to four years in prison.

The Court of Appeal reversed, reasoning thatdefendant was illegally detained as a result of the traffic stop and the stop itself was unlawful. But the high court, split 4-3, ruled that a passenger is not seized as a constitutional matter following a traffic stop because he or she need not submit to the officers show of authority. The U.S. Supreme Court, in a unanimous opinion, agreed with the court of appeal, saying no reasonable passenger would have thought himself free to leave under the circumstances.

The case was sent back to the state high court to consider whether there the search was valid based on the existence of the warrant. In a subsequent opinion the court reasoned that Case law from other state and federal courts uniformly holds that the discovery of an outstanding arrest warrant prior to a search incident to arrest constitutes an intervening circumstance that mayand, in the absence of purposeful or flagrant police misconduct, willattenuate the taint of the antecedent unlawful traffic stop.

The Court rejected the contention that allowing the search under these circumstances would encourage the police to randomly stop cars to run warrant checks on the occupants. While a search will not be upheld if it is flagrantly or knowingly unconstitutional or is otherwise undertaken as a fishing expedition, he wrote, here the deputy did not act pretextually or in bad faith. The jurist also emphasized that the search did not take place until after the existence of the warrant had been confirmed.

Tagged as: bench warrants, probation and sentencing laws

Medicinal Marijuana Defense: Medical Caregiver Exception Defined

Posted on: December 27, 2008 at 11:24 a.m.

When does a person qualify as a caregiver under Californa's medicinal marijuana laws? The Supreme Court ruled he or she must have provided patients some previous other form of caregiving in order to qualify as a "primary caregiver" and be immune from prosecution for growing or selling the drug.

The CaliforniaSupreme Court unanimously ruled that a Santa Cruz County man whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, was not entitled to a jury instruction on the affirmative defense - meaning that he does not get the jury to even consider it.

Defendant had been arrested in 2003 and charged with cultivation of marijuana and possession for sale after sheriffs deputiesacting on a tip from a bank teller who said thatsuspect made several cash deposits of more than $2,000 each over a three-month period in small bills smelling strongly of marijuanafound 190 plants, plus other drugs and firearms, during a search of his residence.

Defendant, who had a medical marijuana recommendation for colitis, dysphoria, and depression, said that he smoked about four marijuana cigarettes per day for medicinal purposes. However, the investigators concluded the operation was primarily a for-profit commercial venture afterdefendant admitted he sold the drug to five other medical marijuana users.

At trial,Defendant asserted that Californias Compassionate Use Act of 1996which provides partial immunity for the possession and cultivation of marijuana by qualified patients and their primary caregiversshielded him from prosecution because as he was the other users primary caregiver insofar as he had consistently assumed responsibility for their health by providing them medical marijuana upon a doctors recommendation or approval.

The act defines a primary caregiver as the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

The trial judge, despite grantingdefense request to instruct the jury that he was partially immune as a qualified patient, declined to instruct the jury on immunity as a primary caregiver after concluding that the evidence was insufficient to showdefendant had provided such services, and the jury convicted him.

The appelate court explained thatdefendantwas not entitled to the instruction because he had failed to satisfy both halves [of the definition]the designee clause and the responsibility clause.Examining the latter, the justice explained that a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.

Explainingthat defendants evidence failed to demonstrate satisfaction of each of the three aspects,the revieiwng courtconcluded that the trial court had ruled correctly because the act simply does not provideprotection where the provision of marijuana is itself the substance of the relationship.

The court also rejected defendants argument that the 2003 enactment of the Medical Marijuana Programwhich provides a defense to similar charges for those who give assistance to patients and primary caregivers in administering medical marijuana, and acquiring the skills necessary to cultivate or administer itimmunized his conduct.

The Defendant, to the extent he assisted in administering, or advised or counseled in the administration or cultivation of, medical marijuana, could not be charged with cultivation or possession for sale on that sole basis, she wrote. It does not meanhe could not be charged with cultivation or possession for sale on any basis; to the extent he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law.

Tagged as:

Religious Belief NOT a Defense to Marijuana Case

Posted on: December 27, 2008 at 11 a.m.

A California court recently ruled on religion and marijuana defense law. The Court found that aman who sold marijuana from a Hollywood facility he called a church did not have a constitutional right to sell or possess the drug.

The Courtaffirmedthe conviction on charges of selling marijuana and possessing marijuana for sale. Defendant had beenplacedprobation on condition that he serve 90 days in jail.

Defendant, dubbed The Hollywood Wizard of Weed by the magazine High Times, was arrested in November 2006 after a police raid on Temple 420 in Hollywood. Officers seized nine pounds of marijuana along with scales, surveillance cameras, pay-owe sheets, bongs, pipes, Ziploc baggies, and packaging materials.

The narcotics officer who led the raid testified that she had visited the facility twice in the previous three months in an undercover capacity. She testified thatdefendant introduced himself as the owner of Temple 420, and said that it was a church in which members could buy marijuana.

Defendant said he planned to sell marijuana from vending machines. The front lobby had a cash register, a display of water bongs and pipes, and drug paraphernalia and related clothing, the officer said, adding that on her second visit, she filled out a membership application and purchased 3.5 grams of marijuana for $60.

Defendant testified that he was an ordained Universal Life Church minister who started Temple 420 as an online ministry. He said he was a pro-marijuana activist and that he was trying to bring religion to the pot movement because there is a million people trying to legalize marijuana and a lot of them dont have God in their lives.

The defense sought to present evidence concerning the Religious Freedom Restoration Act of 1993. The statute prohibits enforcement of laws that burden the practice of religion in the absence of a compelling governmental interest, but a 1997 U.S. Supreme Court decision held the act unconstitutional to the extent it bars enforcement of state laws.

Strobel barred the defense from referring to RFRA, saying it does not provide a defense in this case and that the minimal probative value that the evidence might have was outweighed by the possibility of misleading the jury.

The court of appeal held thatthe trial judge did not abuse her discretion in excluding the RFRA evidence, as well as evidence referring to the First Amendment. The justice noted that the temples standard membership agreement, which allegedly referred to RFRA, was not introduced in evidence, and that the defense was allowed to question the lead officer about the content, although the judge said it would be too confusing to allow questioning of the officer about whether she researched the information on the form.

The justice went on to reject the claim that the state Constitution protects the right to sell marijuana for religious purposes.

The Courtdistinguished cases that permit the use of controlled substances as part of sacramental rites. None of those cases, which dealt with the use of hallucinogenic drugs during religious ceremonies, involve sale of drugs, the justice said.

Appellant presented no evidence that he was unable to practice his religious beliefs without selling marijuana or that he had to use marijuana to perform religious services, the jurist wrote. Unlike the defendants in the cited cases, he added, the ceremonial use of marijuana is not the sine qua non of appellants faith and religious beliefs.

Tagged as: drug crimes defense

Failing to Pursue a Fugitive: Serna Motion in Los Angeles Warrant Cases

Posted on: December 27, 2008 at 10:31 a.m.

Clearing a Los Angeles Bench Warrant always requires immediate action by a criminal lawyer and the client. The sooner the client is in court, the less likelihood the court will place him or her into custody.Our law firm has handled numerousmisdemeanor and felony warrant matters, where thewarrant was recalled and the client stayed out of jail. Wepresent the client's background, and mitigation evidence in court to justify the immediate release.

Another way our firmdefends a criminalwarrant is to attack its legal validity in court, through a Serna motion which allows the defense to argue that the police and prosecution failed to seek the client out, and serve the warrant on him. Further, because of this untimely action,the defense is prejudiced andunable to present evidence of mitigation in court.

A recent California decision dealt with what constitutes untimely police action warrantinga case dismissal.TheCourt held thatthe State of Californias failure to aggressively pursue disgraced politicallobbyist Norman Hsu after he fled from justice 16 years ago before sentencing on a plea to a grand theft charge did not violate his right to a speedy trial.

Upholdingdefendant's conviction and three-year prison sentence, the Court concluded that the former Democratic Party fundraiser was more to blame for the delay than the government, and rejected his contention that he should have been able to rescind his plea agreement because the judge who was required to sentence him under it retired eight years ago.

Defendant was charged in California in 1991 with 16 counts of grand theft after the collapse of an alleged pyramid or Ponzi scheme in which he solicited investments in a fictional latex glove business, but used money obtained from later investors to pay earlier investors.

Defendantentered a no contest plea in 1992in San Mateo Superior Court to one count of grant theft, with an admission that he took more than $100,000, under an agreement which called for a three-year sentence.

However,Defendant fled prior to sentencing, and spent a number of years in Asia before returning to the United States in the late 1990s.

In 2003, with no effort to hide his identity despite his fugitive status,he began contributing to, and collecting contributions for, political candidates and other causes. By 2007, he had raised over $100,000 in bundled funds for Hillary Rodham Clintons 2008 presidential campaign, even though he was neither a party member nor registered to vote.

WhenDefendant learned that year that he was about to be arrested on a bench warrant from the 1992 charge, he arranged for his surrender in August and appeared in court and posted $2 million cash bail. However, when he once again failed to report for sentencing, another bench warrant issued, and he was taken into custody by FBI agents and extradited to California after falling ill on an Amtrak train in Colorado bound for Denver.

Back in California,Defendant moved to dismiss the charges on the basis that the 15-year delay in sentencing violated his constitutional rights, claiming that authorities could easily have found and arrested him during those years.

The court reasoned that, While it is unclear how Hsu could have engaged in such prominent political activity without being detected, [his] flight to avoid being sentenced must be weighed more heavily than the ensuing failure of the government to apprehend him, the judge wrote.

Pointing to the prosecutions declaration that there are more than 100,000 arrest and bench warrants outstanding in California at any given time,thecourtopined that the government should have discretion concerning how to allocate its finite investigative resources andcannot be expected to pursue each of these 100,000 individuals with the effort it might expend to capture, for example, a serial killer.

Tagged as: bench warrants

Los Angeles Counterfeit Goods: Penal Code Section 350

Posted on: December 26, 2008 at 10:48 p.m.

Los Angeles criminal courts are facing more and more cases stemming from the sale of counterfeit goods, in violation of Penal Code Section 350. The prosecution typically relies on expert opinions to prove their case that the goods seized were fake, and not licensed by the owner of the brand. Frequently counterfeited products include clothing, sunglasses, and purses. The punishmentdependsona suspect's prior record, and the number of items recovered by law enforcement. The criminal defense of these matters focuses on 1) what the client knew 2) how he or she obtained the items and 3) whether other items in the store were legitimate. Our Los Angeles defense firm has been able to obtain probation for every client it hasrepresented on charges of possession or sale of counterfeit items.

Recently Los Angeles law enforcement came down hard on the famed Santee alley, where police raids that led to the arrests of 28 people for making and selling knockoff goods.Police seized $2.7 million in counterfeit items bearing names such as Air Jordan, Ed Hardy, Coach and Sony in the weekend raids, resulting in the second-largest take of knockoffs in Los Angeles County history.

"As the economic times become tougher, the counterfeits become more and more prevalent," said Los Angeles Police Department Cmdr. David Doan. "That continues to be a negative rein on businesses whose property is being counterfeited. We need to get the message out to make sure you buy smart and make sure you're helping our economy and not helping the criminals. Those arrested will face varying charges, including sales, distribution and manufacturing of counterfeit merchandise, Doan said. The stores in Santee Alley, also known as the Callejones, have long been a hot spot for selling bootleg goods -- including electronics, clothes, music and movies -- to Angelenos on a budget.

Tagged as: federal law and defense, resisting arrest pc 148

DUI and the Police

Posted on: December 18, 2008 at 8:50 a.m.

Most people in the city of Los Angeles will have to stand before a judge, receive a life altering penalty and feel a sense of shame if they are charged with DUI. Los Angeles DUI attorneys often aren't utilized properly during these trials, and the general public suffers.

However, when it comes to police officers in one US county, DUI charges aren't a big deal. In large part, it's the successful work of the qualified DUI defense attorney that did the trick.

A DUI charge filed in November against Walton County Deputy Cullen Coraine has been dropped. Coraine's DUI defense attorney, said the state attorney's office failed to dispute his motion to dismiss the charge.

"Basically we argued the undisputed facts of the case didn't support the charges," the DUI defense attorney said. "The state attorney's office is of a like mind."

The Assistant State Attorney acknowledged that prosecutors were unable to object to the DUI defense attorney's motion because the arguments he presented were impossible to dispute.

"There was nothing contradictory," he said.

Coraine was pulled over Nov. 23 and charged with DUI and driving 80 mph in a 45-mph zone. Coraine was adjudicating guilty on the speeding charge, according to Walton County court records. The DUI defense attorney argued in his motion that his client denied he'd been drinking at all, and "there was no staggering or swaying like you see in the cookie cutter cases." He argued in his motion that Coraine declined to submit to field sobriety testing or a breath test for the officers who pulled him over Nov. 23, but told them he would allow a supervisor to administer those tests. "There was a disagreement between Cullen and others in the department over collective bargaining issues," he said.

The DUI defense attorney also argued in his motion that the Walton County officer who pulled Coraine over for speeding had no factual basis for alleging Coraine had been driving 80 mph, as he claimed. "He (Coraine) said he might have been going slightly over the speed limit," the DUI defense attorney said. "The officer who made the stop had no radar."

The DUI charge was dismissed last Wednesday.

Tagged as: violent crimes defense

Yet Another Los Angeles Area White Collar Crime

Posted on: December 17, 2008 at 10:03 a.m.

As the economy continues to tumble, and those involved in questionable real estate deals come to light, Los Angeles area white collar criminal defense attorneys are seeing more and more clients regarding white collar crime allegations. A recent case in Norwalk is a great example.

According to the Los Angeles Times, when federal postal inspectors raided a Spanish-language religious bookstore in Huntington Park, they said they found something unusual: envelopes filled with $3 million in cash.

The discovery helped federal prosecutors build a case against Norwalk businessman Milton Retana, a Salvadoran citizen. He was arrested Tuesday after being indicted on charges of white collar crimes, including fraud and making false statements as part of a scheme that, beginning in 2006, allegedly lured more than 2,000 people into investing an estimated $62 million.

With Wall Street white collar crimes reaching the $50 billion mark, $62 million may not seem like that much. However, Federal prosecutors will come down hard on any individual accused of white collar crimes, especially at a time when the public is anxious to see executives face serious jail time. Some blame the current economy on white collar criminals who presented one situation, yet stole countless amounts of money. Whether or not this is true, it will sway juries and even prosecutors who want to make a name for themselves (or in the case of District Attorneys, help their re-election chances).

A sign of the serious in this particular white collar criminal matter, Retana faces a maximum of 165 years in federal prison if convicted on all the charges.

There are a variety of white collar crimes that are prosecuted to the fullest extent by law enforcement. Commonly committed white collar crimes include:

  • Money laundering - Money laundering is the practice of engaging in financial transactions in order to conceal the identity, source, and/or destination of money, and is a main operation of the underground economy.

  • Pyramid schemes - A pyramid scheme is a non-sustainable business model that involves the exchange of money primarily for enrolling other people into the scheme, without any product or service being delivered.

  • Counterfeiting - Counterfeiting describes forgeries of currency or documents, but can also describe clothing, software, pharmaceuticals, watches, or more recently, cars and motorcycles, especially when this results in patent infringement or trademark infringement.

  • Ponzi schemes - A Ponzi scheme is a fraudulent investment operation that involves paying abnormally high returns to investors out of the money paid in by subsequent investors, rather than from the profit from any real business.

  • Embezzlement - Embezzlement is the act of dishonestly appropriating or secreting assets, usually financial in nature, by one or more individuals to whom such assets have been entrusted.

  • Fraud - Fraud is a deception made for personal gain or to damage another individual.

  • Tax evasion - Tax evasion is a felony and the general term for efforts to not pay taxes by illegal means.

  • RICO - The Racketeer Influenced and Corrupt Organizations Act (commonly referred to as RICO Act or RICO) is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization.

  • Extortion - Extortion is a criminal offense, which occurs, when a person unlawfully obtains either money, property or services from a person, entity, or institution, through coercion.

  • Computer crimes - Computer crime, cybercrime, e-crime, hi-tech crime or electronic crime generally refers to criminal activity where a computer or network is the source, tool, target, or place of a crime.

  • Forgery - Forgery is the process of making, adapting, or imitating objects, statistics, or documents (see false document), with the intent to deceive.

  • Bribery - Bribery, a form of pecuniary corruption, is an act usually implying money or gift given that alters the behavior of the recipient in ways not consistent with the duties of that person or in breach of law.

  • Bankruptcy fraud - Bankruptcy fraud typically involves concealment of assets, concealment or destruction of documents, conflicts of interest, fraudulent claims, false statements or declarations, and fee fixing or redistribution arrangements.

Tagged as: theft, white collar crime fraud theft laws

Testing the Boundaries of Vandalism

Posted on: December 10, 2008 at 10:11 a.m.

A 59-year-old woman pleaded guilty Friday to bombing a federal courthouse and a FedEx building earlier this year in what her attorney described as "misguided vandalism." Ella Louise Sanders of San Diego entered her plea to possession and use of a destructive device to commit a crime of violence. She could face up to 30 years in prison when she is sentenced in August. The courthouse explosion on May 4 spread nails and shrapnel as far as two blocks, and authorities almost immediately began looking into whether it was related to the April 25 FedEx bombing. No one was injured in either bombing. As part of her guilty plea, Sanders said she conspired with others to construct and detonate a series of pipe bombs. She said she bought explosive materials and stole pipes to make five bombs that were used in both explosions, prosecutors said.

The creative defense concocted by the vandalism defense attorney invented an interesting definition of the term "vandalism." Vandalism is ruthless destruction or spoiling of anything beautiful or venerable. Such action includes criminal damage, defacement, graffiti and crass erection of an eyesore. Gov. Arnold Schwarzenegger actually signed into law a measure that requires those convicted of graffiti vandalism to clean up their scrawls and possibly keep the surface clean for one year. Usually, vandalism is a charge that has more to do with petty crimes that bombings.

The law which Go. Schwarzeneggar signed into law was sponsored by Los Angeles. City officials say Los Angeles has seen a more than 25 percent increase in graffiti in the past three years, from 25 million square feet of marred surfaces in 2005 to 31.7 million in the year that ended Wednesday.

The law makes it mandatory for a person convicted of graffiti vandalism to repair the property when possible. However, a judge could decide not to order the defendant to risk injury by cleaning up graffiti on a sign hanging over the freeway.

Tagged as: california criminal laws

Los Angeles Politicians and White Collar Crime

Posted on: December 8, 2008 at 5:38 p.m.

The history of the City of Los Angeles is filled with stories of corruption among city officials, both law enforcement and elected officials. That history has been consistant, with a new controversy arising every few years. White collar crimes are the most common crime for a political official to be accused of, because of the money, power and relationships involved in politics. Los Angeles white collar crime attorneys know that such cases involve miles of paper work and countless hours of discovery and fact finding.

One such white collar criminal matter involves Three Valleys Municipal Water District Board Member Xavier Alvarez. Alvarez is accused of felony counts relating to illegally funneling health insurance benefits. Mr. Alvarez, who represents Pomona's first district on the board, is charged with 3 felony counts relating to illegally funneling health insurance benefits to his ex-wife for nearly $4,000. The charges include misappropriation of public funds, insurance fraud and grand theft.

Three Valleys Municipal Water District offers insurance coverage to board members and their dependents. According to Deputy District Attorney Sandi Roth, Mr. Alvarez has not been married since March 4, 2002, 5 years before he received health coverage for his ex-wife. If charged on all counts, Mr. Alvarez could be sentenced to anywhere from felony probation with community service, county jail time or a maximum of 6 years in state prison. The Public Integrity Division of the Los Angeles County District Attorney

Tagged as: theft, white collar crime fraud theft laws

Jamiel's Law: A Developing Situation

Posted on: December 6, 2008 at 4:28 p.m.

Jamiel's Law is a voter initiative would allow Los Angeles police to arrest illegal immigrant gang members solely because they're illegal. The law is named after 17-year-old Los Angeles High School football player Jamiel Shaw II, who was gunned down in March allegedly by a reputed gang member who was in the country illegally. The measure would modify the Los Angeles Police Department's Special Order 40, which prohibits officers from initiating contact with individuals for the sole purpose of determining whether they are illegal immigrants.

Supporters of the proposed Los Angeles voter initiative said they collected enough petition signatures before Friday's deadline to qualify the measure for the May ballot. The signatures still need to be verified by the Los Angeles city clerk's office, a process that could take up to three weeks. Proponents, who needed to gather 73,963 signatures from valid registered voters in the city, said they had submitted more than 76,000.

Immigrant rights attorneys, advocates and LAPD Chief William J. Bratton strongly oppose Jamiel's Law, saying it is unnecessary and opens a backdoor to "racial profiling" by law enforcement. Bratton, when testifying before the City Council in April, said officers already have the authority to tell immigration authorities when known gang members have committed crimes.

The relationship between immigration and gang activity is one the Los Angeles Police Department and Los Angeles criminal defense attorneys have been exploring for decades. Los Angeles gang defense and Los Angeles immigration defense attorneys are experienced in defending people who find themselves accused of crimes or who are wrestling with immigration issues.

Tagged as: immigration consequences

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