Los Angeles Criminal Law Blog


Weapons Charges and Dennis Farina

Posted on: June 12, 2008 at 10:09 a.m.

Dennis Farina, star of the television show "Law & Order" and the movie "Get Shorty," was arrested on weapons charges for bringing a gun to an airport.

Back in May, the 64-year-old actor was booked in the felony case for possessing a case with a semiautomatic .22 gun. The actor spent a day in the Van Nuys jail and posted $35,000 bail. Farina claimed to have forgotten he had the gun with him. Farina isn't the only high-profile individual to have had this happen to him; Snoop-Dog was arrested at an airport for similar charges, as was the son of former presidential candidate Mike Huckabee. Both were carrying weapons into the airport, which is illegal.

In California, especially in cities such as Los Angeles and San Francisco, weapons and firearms laws are particularly stringent, and the general public must be aware of this.

Below are some tips on how to handle firearms and weapons related charges:

1. Contact an attorney - Law enforcement may not notify you of your rights entirely, and security at the location where you've been arrested may not act according to the law. An experienced attorney will be able to help you with this.
2. Cooperate with police - While you do have the right to remain silent, you don't have the right to resist arrest, fight with the police or obstruct justice. This may help with sentencing.
3. Be aware of your surroundings - Places like airports, schools and other public places will be particularly sensitive to someone bringing firearms or weapons with them. Be aware of this when you're traveling to a school, a park, any major city or the airport.
4. A serious enough weapons charge could count against you as a felony or under California's Three Strikes laws.
5. Any weapon can and will be checked for recent crimes, and even if you aren't the person who committed the crime, it could lead to jail time.

Tagged as: california criminal laws, counterfeit goods pc 350, federal law and defense, jury trial defense




Illegal Narcotics and the U.S./Mexico Border

Posted on: June 10, 2008 at 10:54 a.m.

Southern California has a number of factors affecting it which causes the laws throughout the state to often look strange to the rest of the nation. One such factor is the border that California shares with Mexico. Prosecuting drug laws can be difficult due to the challenges of having to extradite criminals across both sides of the border, and the differing drug laws in each nation. Other states bordering Mexico include Texas, Arizona and New Mexico.

Recently, a drunk driver plowed into a bicycle race near the Mexican border in Texas. Part of the challenge in attempting to prosecute is the citizenship of the individuals injured as well as the individual accused. Drug policies can be even more difficult, as witnesses may not have citizenship in the country they witnessed the crime, making it difficult for law enforcement agencies to get them to testify.

The popular television bounty hunter Dwayne "The Dog" Chapman had his challenges with this issue as he arrested an American citizen while he was in Mexico, which violates Mexican law. Smuggling drugs across the border is a federal offense, and could bring charges on both sides of the border.

If you would like to talk to an experienced attorney regarding drug related charges, or any other criminal matter, please contact the attorneys at Kestenbaum, Eisner & Gorin, LLP.

Tagged as: california criminal laws, drug crimes defense, high profile defense




Murder in Los Angeles: The Numbers are Frightening, For Some

Posted on: June 2, 2008 at 4:30 p.m.

As of May 18 of this year, there were 315 murders in the city of Los Angeles. For a city with 4 million or so people, that's not a very high number, however a further look into those statistics reveal not only a terrible reality, but a scary revelation of present day LA.

Of those 315 murders, 269 were black or Latino, and only 30 victims were white. Los Angeles has long had racial challenges (highlighted by the 1969 and 1994 riots), but this number is staggering when taken into consideration. African Americans don't even make up 10% of the total population of Los Angeles and yet they total over 24% of all murder victims. Latinos are roughly a little less than half the total population of Los Angeles, and yet they number far more than half the number of murder victims.

Almost all of these murders involved weapons, and almost 80% of them involved guns. Many of these tragedies involve gangs and/or gang activities, and the city of Los Angeles has long talked about trying to stem the tide of gang violence (with very little success). Murder seems like a black and white crime, a person is alive one minute and dead the next. However, this crime is not always obvious, and there are often mitigating circumstances.

The war against violent crime can often net innocent people, as evidenced by the countless inmates currently being freed on DNA evidence who were on death row. If you've been arrested on murder charges or need advice, contact a competent attorney to protect your rights from being violated.

Tagged as: california criminal laws, jury trial defense




Officers Looking in Your Backyard? Lawful Police Conduct, Court Rules

Posted on: May 27, 2008 at 10:23 p.m.

Another relevant search and seizure case was recently decided by the California Court of Appeal. As discussed in other portions of this Law Blog, a criminal defense attorney brings a motion in court pursuant to Penal Code Section 1538.5 contesting the validity of police conduct. If the defense prevails on the motion, the officer's observation and seizures of evidence are ruled unconstitutional, and the evidence is excluded from court.

This decision clearly helps the prosecutors: a police officer who boosted himself up on his toes in order to see over the defendant

Tagged as: probation and sentencing laws




Violation of Prosecutor's Duty to Disclose Favorable Defense Evidence: Penal Code Section 1054

Posted on: May 27, 2008 at 10:12 p.m.

L.A. criminal attorneys turn to Penal Code Section 1054 which requires that the prosecutors provide all reports, witness statements, physical evidence, videotapes, photographs, etc. By reviewing what the police has gathered as part of its investigation, the defense is able to be ready to contest the criminal charges. In turn, the defense may want to reinterview witnesses to determine how credible their observations were. The defense may also want retest DNA results, enhance videotape footage, test fingerprints, and do any other forensic investigation to ensure that nothing was missed in the way the case was investigated, so that there are no other suspects and that the forensic testing of evidence was consistent with established scientific principles.

In a recent decision, The California Supreme Court ordered a new penalty trial in the killing of an Eagle Rock convenience store clerk in the early 1980's. The basis for the ruling was the prosecution's failure to turn over favorable evidence to the defense. If evidence is not turned over, then the defense is not able to present it to the jury and thus the rightfulness of the conviction is subject to question. As to this 1982 case, the court held that the death sentence imposed on Adam Miranda for the 1980 killing was tainted because prosecutors, who blamed Miranda for another murder during the penalty phase of his 1982 trial, failed to turn over a letter to the defense in which another man claimed he committed that crime.

At trial, jurors convicted Miranda of the murder of the store clerk, Gary Black, and of assaulting Black

Tagged as: federal law and defense, motion to dismiss unlawful police search




Prosecution's Failure to Recover - Test Evidence: 2008 Example of Wrongful Conviction

Posted on: April 27, 2008 at 3:08 p.m.

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.

Tagged as: california criminal laws, faq, jury trial defense, motion to dismiss unlawful police search




Police Misconduct: Using a Pitchess Motion in Criminal Defense - Penal Code Section 1043

Posted on: April 7, 2008 at 4:11 p.m.

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 criminal case.

Prior misconduct evidence can then be used to impeach the officers in the current case.

Tagged as: california criminal laws, police misconduct




Emergency Exception: When can police lawfully enter a home without a Search Warrant?

Posted on: April 1, 2008 at 11:41 p.m.

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

Tagged as: federal law and defense, probation and sentencing laws




California Medicinal Marijuana: Southern California Criminal Defense Perspective

Posted on: March 29, 2008 at 8:11 p.m.

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

Tagged as:




How does California help the Wrongly Imprisoned?

Posted on: February 28, 2008 at 10:44 p.m.

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.

Tagged as: federal law and defense




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