Internet Crimes and Child Pornography: Latest Court Ruling on the Application of California Penal Code Section 311.11Posted on: October 27, 2007 at 12:52 p.m.
Soutern Callifornia criminal attorneys have noticed that police at the local, state, and federal levels has been investing more and more resources into the investigation of internet crimes. In California, frequently committed internet crimes include: internet fraud, phishing, credit card fraud, illegal downloading, child pornography, illegal pornography, and illegal distribution of viruses/spam. With the recent publicity of "To Catch a Predator" on NBC's Dateline, the public is more aware of suspects attempting to use the internet to engage in sexual chat and activities with minors.
California Penal Code Section 311.11 specifically makes illegal the possession of child pornography. While pornography overall is typically protected speech under the 1st Amendment of the U.S. Constitution (as ruled over 30 years ago during the Larry Flynt obscenity trials), child pornography is considered to be harmful and illegal speech, and is not subject to constitutional protections. The law is clearly aimed at protecting minors from exploitation, and victimization.
Los Angeles Criminal Defense Lawyers should be aware of the latest ruling in California, People v. Herzig, interprets Section 311.11. The ruling states that an individual who possesses multiple images of child pornography on a computer can only be convicted of one count of possessing such images. In other words, if the police recover a computer with mutliple images from suspect's home, the defendant can only be charged with one criminal violation. As a result, in the Herzig decision, the Appeals Court ruled that nine of 10 counts on which Timothy Donald Hertzig was convicted of possessing child pornography under Penal Code Sec. 311.11 must be dismissed. The panel said Hertzig
Tagged as: federal law and defense, sex crime accusations
What is the Prosecutor's burden in proving a defendant's guilt? Have you seen innocent people falsely accused despite evidence of their innocence?Posted on: October 6, 2007 at 7:33 p.m.
California Criminal Law requires that the state prove every element of a criminal offense beyond a reasonable doubt. This rule applies whether a defendant is accused of a DUI misdemeanor, or a serious felony such as Manslaughter or Murder. "Beyond a Reasonable Doubt" is defined as proof that is so strong that each juror has an "abiding conviction in the truth of the charge." This means that each juror's belief about the defendant's guilt is so strong that he would not change his mind later that day, that week, or later than month. This is a very high burden! Even if the juror feels defendant likely did it, but that not beyond a reasonable doubt, he must vote to acquit the defendant. Los Angeles Criminal Defense Lawyers argue in front of juries daily in Southern California courts, ensuring that the government has met its burden before a unanimous verdict is rendered. Nevertheless, jury decisions are sometimes fallible. The Innocent Project, based on the East Coast, has been involved in litigating on appeal hundreds of cases over the last decade, around the country. This criminal defense consortium has demonstrated that 100s of convicted defendants were later proven innocent through DNA testing, or other means. Many spent years in prison, and some were facing the possibility of the death penalty. 75% of the bad convictions resulted from faulty eyewitness identification, while the others were caused by coerced confessions, prosecutorial misconduct, or police hiding exculpatory evidence. The jury trial system is a powerful tool against government abuse. It prevents the state from prosecuting people with contrarian views, outspoken critics, or others with disparate interests. And it works to preclude politicians from pursuing rivals through false criminal claims in the courts. These are often problems in developing countries, and former Eastern Block nations, where the court system is corrupt, and there is no social acceptance of the court system as just and fair. Despite the United States' justice system's Constitutional right to a jury trial, and the right to an effective advocate, the court process does make mistakes. Aggressive criminal defense work is very important to ensuring that the innocent are exonerated.
Tagged as: california criminal laws, motion to dismiss unlawful police search
What rights do you have as a passenger in a vehicle after a traffic stop? Can the police search you, order you to provide identification, or pat you down for weapons?Posted on: September 6, 2007 at 9:52 p.m.
The U.S. Supreme Court in Brendlin v. California (2007) 127 S.Ct. 2400 addressed many legal issues related to what constitutional rights passengers have after a traffic stop.
Assume that the police stop a car for an alleged traffic violation. Obviously, the driver is detained. But what about the passengers? Although it might seem obvious and a simple matter of common sense, a split developed on whether passengers in stopped cars were in fact detained. This is important because if the passengers were not detained, those passengers could not challenge the legality of the traffic stop. So even if the traffic stop turned out to be unlawful, and any evidence related to the driver had to be suppressed, the passengers were fair game and would lose their motions to suppress.
1. Passengers do have a Reasonable Privacy Expectation and have Standing to Challege Unlawful Police Intrusions after a Traffic Stop
Remarkably, the United States Supreme Court granted certiorari in Brendlin and has now issued its opinion, unanimously reversing the California Supreme Court. The holding of the court is that passengers in stopped cars are detained, thereby permitting those passengers the right to challenge the legality of the stop of the car: When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop. (Brendlin v. California (2007) 127 S.Ct. 2400, 2403.)
The test of whether someone is detained comes from two cases. In United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, the court held that a person is seized if a reasonable person would believe that he or she is not free to leave. This test does not cover all situations, so the court adopted a gloss on this test, in United States v. Drayton (2002) 536 U.S. 194, 202, 122 S.Ct. 2105, 153 L.Ed.2d 242, saying that a person is detained where that person would not feel free to decline the officer
Tagged as: federal law and defense, probation and sentencing laws
Consumer Fraud is organized into several areas under the misdemeanor prosecution powers of the Los Angeles City Attorney's Office for fraud practices - Immigration, Contractor, Auto Insurance, Solicitation, Loan Scams, and Credit Repair Fraud. The Los Angeles District Attorney's Office prosecutes these criminal fraud cases as well, but typically as felony matters.
The Los Angeles Criminal Defense of all consumer felony and misdemeanor fraud matters requires timely intervention, especially with aggressive prosecution practices in Los Angeles and Southern California courtrooms. Often a California Criminal Lawyer's aggressive intervention can result in a felony theft matter being reduced to a misdemeanor charge.
In Los Angeles courts, one area of criminal law enforcement scrutinty is so-called Immigration Consultant fraud -- the investigation of people who are not attorneys, but pretend to be by misadvising clients about areas of law they have no expertise in, nor appropriate licensing. Under California law, an immigration consultant cannot provide a client with any advice on immigration matters. The Los Angeles City Attorney's Office feels these consultants are not lawyers and should not give legal advice. An immigration consultant may only provide a person assistance with translating information, locating and securing documents on your behalf, and completing immigration forms.
Another area of criminal investigation by Los Angeles prosecutors is Contractor Fraud. Often contractors have legal issues related to appropriate licensing, bonding, and pending complaints. Crimes of theft, fraud, and other legal matters are aggressively investigated and prosecuted as both felonies and misdemeanors. The decision to file charges depends on the level of loss, as well as the age and level vulnerability of the alleged victim. Again, Los Angeles Criminal Attorneys defend these allegations immediately, ensuring that restitution if any is paid, and that felony charges are reduced.
Another hotbed area for covert investigations, including undercover media reports, is Auto Repair Fraud, which includes appropriate licensing and fraudulent estimates/work inquiries by the police. The police often set up sting operations, and seek the filing of felony charges. Again swift and strategic legal action by a criminal defense lawyer can mean the difference between jail, and no custody time, in Los Angeles and So. California courtrooms.
Identy theft is another area of Consumer Prosecution. Los Angeles prosecutors focus on prosecuting all individuals using others' personal data for fraud. This is on of the fastest growing crimes in the United States is identity theft. Identity theft occurs when someone steals a person's identity and proceeds to ruin credit or commit crimes in the person's name.
Finally, Loan Scamming is a related area of criminal prosecution -- money is taken from a consumer, under the guise of a loan promise that nevermaterializes. Or, a consumer's equity is taken under the false promise of a home improvement, or refinancing. Again, these are fraud matters that Los Angeles criminal lawyers defend as either felony or misdemeanor cases. Southern California consumer fraud matters are typically aggressively prosecuted, and thus the criminal defense of these matters needs to be equally aggressive.
Tagged as: federal law and defense, theft, white collar crime fraud theft laws
The criminal court system in Los Angeles, California deals with hundreds and hudreds of cases daily. How do criminal defense lawyers humanize a client to busy criminal courts? While this is not the easiest task to accomplish in the Southern California justice system, an L.A. criminal attorney must defend his client by humanizing him to mitigate a possible sentence.
Persuading Los Angeles prosecutors, probation officers and judges to recognize a client's life cannot be defined based solely on the conduct that brought him or her to court is essential to gaining a just outcome. Few persons are accurately defined by the worst thing they ever did, but unless we intervene to demonstrate the contrary, the default of the justice system is to assume that is the way our client is in his or her daily life.
For criminal defense clients, the offense conduct is certainly negative, but the entire picture of the defendant's life may be far more positive and inspirations. Showing that to the court comes with an in-depth investigation, and usually proves to be a major benefit to the outcome of the case. Character letters from employers, family members, social organizations (church, temple, AYSO, wherever client participates) assist the Criminal Defense Blog's clients on daily basis. This is one substantial factor in obtaining probation for clients, instead of state prison.
Tagged as: california criminal laws, vandalism pc 594
To be found guilty of the crime of murder requires that the accused have an intent to kill the deceased. The intent may be express (Defendant stating "I am going to kill her" and then pointing the gun at the victim's face), or implied (as in high-risk conduct by a Defendant in a police pursuit causing the death of an innocent pedestrian). Because of the gravity of the offense, the crime of murder carries life in prison, and due to the politics in California the Office of the Governor and the Parole Board almost never release someone on parole previously convicted of murder. Accordingly, criminal defense lawyers that are working in Los Angeles Courts, and throughout the Southern California criminal justice system, may ask that the jury to find their client guilty of something less than murder, such as a voluntary manslaughter or an involuntary manslaughter. Thes are crimes for which a Defendant is eligile for probation. The typical defenses to a murder charge being reduced include (1) "unreasonable" self-defense (2) voluntary intoxication (3) provocation and (4) heat of passion. Should the Los Angeles criminal lawyer be able to establish the defense, the Defendant is eligible for probation after a trial.
For example, a preacher's wife in the south was recently convicted of Manslaughter for killing her husband, and received probation. The case received lots of media attention. Court TV reported tha: "A preacher's wife who was convicted of manslaughter for shooting her husband to death left jail Wednesday for a mental health facility, where she will serve the remainder of her sentence. After spending 13 days in McNairy County jail in Selmer, Tenn., Mary Winkler was transferred to an undisclosed mental health facility, where she will receive treatment for longstanding mental health issues, including post-traumatic stress disorder, depression and a mild personaliyy disorder. Circuit Judge Weber McCraw, who presided over Winkler's murder trial and gave her the option of serving some of her sentence in a mental health facility, signed the sealed order releasing Winkler Wednesday."At the provider's request and to ensure she has the treatment she needs, the name and location of the facility are not being disclosed," Tennessee Supreme Court public information officer Sue Allison said."
Defendant Winkler was convicted of voluntary manslaughter in April for shooting Matthew Winkler in the back as he lay in bed in the family parsonage on March 22, 2006.On June 8, McCraw sentenced Winkler to three years, but with 210 days to be served in custody, minus 143 days she served in pretrial custody in 2006. He also gave her the option of serving up to 60 days in a mental health facility.
During Winkler's trial earlier this year, defense psychologist Lynne Zager testified that Winkler's mental state affected her ability to form the criminal intent to kill her husband. Taking the stand in her defense, Winkler told jurors that her husband subjected her to emotional, physical and sexual abuse, prompting her to shoot him. The jury's verdict of voluntary manslaughter appeared to give credence to her claims. At her sentencing in June, McCraw asked Zager if Winkler would benefit from treatment in a mental heath facility, and Zager said yes.Because Winkler has already served 13 days in jail, she is set for release back to society after serving out her time in the mental health facility. Before she was taken into custody at sentencing, Winkler was living in McMinnville, Tenn., with a family who took her in after she was released on bond in 2006. The head of the household testified at her sentencing that Winkler had become a new person since going to live with the family.Her boss at a dry cleaner in McMinnville also testified at her sentencing that Winkler was a model employee whom the public should not fear if she were released.
Tagged as: federal law and defense, jury trial defense
Unlawful Police Conduct: Court of Appeals limits law enforcement's justification for searching a suspect after a traffic stopPosted on: August 28, 2007 at 1 a.m.
A new Ninth Circuit decision will assist Criminal Defense Lawyers in Los Angeles, and Attorneys specializing in Search and Seizure Criminal Law throoughout Southern California.
In United States v. Grigg, the Ninth Circuit Court of Appeas ruled last week that police officers may not detain and search a suspect solely to investigate whether the person has committed a minor offense such as a noise violation. The appeals panel held that defendant's Grigg's conviction for possession of an unregistered machine gun must be reversed.
In contrast, the holding in Terry v. Ohio, 392 U.S. 1 (1968), permits an officer to stop a person briefly, based on no more than reasonable suspicion that the person has committed a crime. In some circumstances, however, the courts have held that a person
Tagged as: federal law and defense, probation and sentencing laws
Members of the L.A. City Council have expressed dissatisfaction with the LAPD about its participation in federal drug raids, in cases where the target dispensary is in compliance with California Medicinal Marijuana laws. Ther Los Angeles Police Department has reinterated that it will continue to participate in federal raids on local medical marijuana dispensaries against the wishes of some members of the City Council.
Criminal Defense Lawyers throughout Los Angeles and California are familiar with a continuing legal conflict between federal and state drug laws, which, has created a stalemate. The U.S. Supreme Court has held that as federal laws "preempt" (or trump) state laws, the federal drug laws control.
Accordingly officials with the Los Angeles Police Department contend that it's their job to help enforce the federal law. On the other hand, the L.A. Council members argue that police raids, at best, send a mixed message about the city's support for the state law passed in 1996 to permit the use of marijuana for prescribed medical purposes.
The L.A. City Council last month placed a yearlong moratorium on permitting new dispensaries in the city while lawyers draw up an ordinance to regulate them. At the time, several members of the council reiterated their support for the state law that allows medical marijuana dispensaries to exist.
On the same day the council passed the moratorium, the DEA raided 10 dispensaries in Los Angeles, with LAPD officers providing logistical support. DEA officials said the timing of the raids was a coincidence and that they were merely enforcing federal law, which continues to prohibit any sale of marijuana.
LAPD said that its view is that some of the city's more than 200 dispensaries are a nuisance to their communities and that some are violating the state law that mandates they not profit on their sales.
However, LAPD official Doan said he did not know why the DEA targeted the dispensaries that it did last month, nor did the LAPD apparently ask before agreeing to help with the raids. "The bottom line is anyone distributing marijuana is in violation of federal law," Pullen said.
Councilwoman Janice Hahn said the LAPD didn't always follow the federal lead. Over the years, the LAPD has ignored federal immigration laws and chosen not to ask people about their immigration status as a way to build a better relationship with the community, she said.
Tagged as: drug crimes defense
Criminal Defense - Jury Trials: Can a jury visit the crime scene, as part of reviewing the evidence in the case?Posted on: August 9, 2007 at 4:13 p.m.
It is logical to believe that jurors, acting as fact finders, can visit the scene of an alleged crime as part of trying to figure out what happened, and whether the accused should be criminally responsible (and thus ultimately be punished with time in custody).
As part of trial preparation, most experienced criminal defense lawyers will visit the crime scene. A visit gives a trial attorney a sense of proportion, context, and prepares him or her for successfully dealing with cross-examination, especially when questioning witnesses familiar with the location.
However, criminal law prohibits jurors from visiting the crime scene on their own initiative. The jury instructions in California specifically prohibit jurors from visiting or driving by the crime scene. The conventional wisdom of the court system is that lawyers, not jurors, decide on which evidence to present, and how to do so. Thus it is up to criminal attorneys to request of the trial judge to have jurors conduct a supervised visit of the crime scene, as part of evidence gathering in the case.
Recently, this was done in Phil Spector's murder trial pending as reported by the L.A. Times. " Jurors in the Phil Spector murder trial toured the music producer's Alhambra home this morning, with some jury members trying to re-create the position in which actress Lana Clarkson was found after Spector allegedly killed her four years ago.
A casually dressed Spector welcomed them to his "Pyrenees Castle," as the home is called on a sign out front, wearing a long-sleeved blue T-shirt, sweatpants and sandals.
The jury visit to the hilltop property was requested by the defense. Spector's team believes jurors who see the foyer where Clarkson's body was found will be better able to decide whether Spector held the gun that killed her or whether he was an innocent bystander several feet away. The defense contends the actress killed herself with a shot to the mouth in Spector's foyer.
Richard Gabriel, the defense's jury consultant, said one of the things jurors might discern is whether there were signs of a struggle in the small space -- such as furniture or rugs knocked out of position. (Apparently there were not.)
Four jurors sat in a chair where Clarkson's body was found as they tried to re-create "the position in which she was found," said Linda Deutsch, the pool reporter."
This was not the first time a high-profile trial conducted in Los Angeles had a jury visit the crime scene. The O.J. Simpson case also had the jury visit the home of the defendant.
Tagged as: federal law and defense, motion to dismiss unlawful police search
Criminal Defense: High-Profile Cases, Celebrity Defendants: Lohan, Hilton, and Gibson receive special treatment?Posted on: July 29, 2007 at 7:12 p.m.
Criminal Lawyers do a disservice to their clients if they seek publicity.
The Los Angeles Criminal Law Blog believes it is better to keep clients out of the news. Criminal Attorneys at Kestenbaum Eisner & Gorin have represented professional athletes, television personalities, and actors. The best defense practice in smaller celebrity cases is to avoid the media, to not do interviews, or speak to the press. Even if there were no celebrities involved, but the crime received local media attention, it is still better to avoid publicity (unless of course the prosecutors or the police have sought unfair pretrial publicity causing strong public sentiment against our client!)
It is foolhardy to think that major international celebrities can be kept out of the news. The media has a field day at the arrests of Lindsay Lohan, Paris Hilton, and Nicole Richie. These cases become fodder for papparazzi, and tabloid media outlets.
How does a L.A. criminal defense lawyer defend major-celebrity cases, beside having a P.R. firm, and publicists to assist with media inquiries. Typically it is better to dispose of these cases through an immediate settlement, known as plea bargaining, with the prosecutor's office. In this way, the client's name disappears from the front page, and any damage to reputation can be limited to a short period of time.
When a celebrity client is charged with very serious crimes that may require substantial jail time, a quick disposition is not possible in the L.A. criminal justice system. Criminal attorneys must aggressively prepare the case for trial, through a thorough defense investigation, to find weaknesses in the case. This defense evidence can be used as leverage in the plea-bargaining process, to preclude jail time, and to substitute in community service work.
Special treatment is usually not received by celebrities (except may be in front of juries in trials). Prosecutors, judges, and court staff do not want to be accused of preferential treatment. If anything, celebrity cases are much more scrutinized, and thus the flexibility that ordinary clients receive in plea-bargaining is typically not available for the celebrity -- as everyone in the criminal justice system knows that his or her decisionmaking will be scrutinized by the entire world.
Tagged as: counterfeit goods pc 350, violent crimes defense
Eisner Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses.