Los Angeles Criminal Law Blog
     


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




California Criminal Law: Robbery, Penal Code Section 211 vs. Theft, Penal Code Section 484 and 487

Posted on: May 14, 2008 at 12:43 p.m.

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

Tagged as: jury trial defense, theft, white collar crime fraud theft laws




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

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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




Crooked Cops? LAPD Internal Affairs Fails to Adequately Investigate Its Own

Posted on: February 17, 2008 at 6:24 p.m.

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.

Tagged as: california criminal laws




Criminal Jury Trials: Lawyers may Re-Argue Case to avoid Hung Jury

Posted on: January 21, 2008 at 7:45 p.m.

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

Tagged as: motion to dismiss unlawful police search




Car Stop by a Police Officer: Unlawful if License Tag is Valid, which Officer states he did not see

Posted on: January 16, 2008 at 11:09 p.m.

Car stops are a frequent means of police investigation, which lead to arrests for the possession of narcotics, firearms, and other contraband. If the traffic stop is unlawful, the Constitution states that what the police found in the car is not admissible in court, and thus typically the criminal charges of possession are dismissed. A recent California decision further defines the extent of justification officers need for a lawful car stop, and provides an argument for Southern California Criminal Attorneys to suppress improperly obtained evidece.

A recent California Court Of Appeal decision dealt with the issue of a police officer who testified that he stopped a vehicle because it had an expired license tag, and that he didn

Tagged as: counterfeit goods pc 350, dui drunk driving defense vc 23152, probation and sentencing laws




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