Arraignment is the initial court proceeding where a defendant is advised of his charges, and usually enters a Not Guilty plea. If a defendant is out on bail, he stays out of custody unless the prosecutor demonstrates to the court that the defendant is a flight risk, or a danger to the community, above and beyond what the posted bail would prevent against. In other words, the prosecutor has to explain to the judge why the defendant needs to be rearrested when he has already voluntarily shown up to court, after posting bail. The prosecutor clearly has the burden here, and bail gets increased in cases where Defendant is on probation, there are new charges filed, or the source of bail (the monies used) are connected to illegal conduct.
Tagged as: bail and release, faq
Not necessarily. There are many reasons why the alleged victim or reporting party has a change of heart. It may be that the report of crime (violence, theft, or other violation) may have been false or inaccurate. It may also be that the person is scared to proceed with a prosecution. The police and the prosecutor's office are aware of all the reasons, and do not just "drop charges" especially in domestic violence cases. They attempt reinterview the reporting party to understand the reason behind the change of heart. The only exception is alleged sex crimes cases. The reporting party's desire to not testify and prosecute are respected, thereby causing the criminal charges of unlawful sex to be dismissed.
Tagged as: domestic violence pc 273_5, faq
What happens if I am arrested for DUI? Do I have to defend myself in court? What about the DMV process?Posted on: May 26, 2007 at 1:58 p.m.
Recent changes instituted by the California legislature have dramatically increased the consequences for first or subsequent DUI arrests. A DUI arrest where someone's blood alcohol is .08% or greater begins two separate legal proceedigns - one in court, and one with the DMV. In court, it is a criminal proceeding, where a suspect on a 1st time DUI faces up to 6 months in jail (not mandatory jail - optional), a fine of up to $1000 plus penalties, and other consequences such as community services, working at the morgue, and/or the hospital. The DMV institutes separate administrative proceedings to take away the suspect's license for up to 4 months. You have 10 days from the time of your arrest to request a hearing to fight this suspension, or you lose your license without even a hearing. If you have prior DUI convictions, the consequences in court and the DMV are substantially worse including mandatory jail, a year or more license suspension, and extensive alcohol schooling. A person who has a professional license (lawyers, doctors, police officers, others), or a class A commercial driver's license, have collateral consequences at their place of employment as for many a criminal conviction may cause them to lose their job or face suspension from working.
Tagged as: dui drunk driving defense vc 23152, faq
A defense attorney seeks to exclude evidence obtained as a result of police misconduct. At times, police misconduct occurs in searches that occur during ordinary traffic stops, or in a suspect's home. Additionally, if law enforcement is too aggressive trying to obtain an incriminating statement from a suspect, it may violate the suspect's Miranda right. Litigation in the criminal courts allows a defense lawyer to protect his client's rights by submitting motions to the judge seeking to exclude the recovered evidence, or received statements, from trial. Often a successful motion to suppress cripples the prosecutor's case, causing the case to either be dismissed, or substantially reduced in plea negotiations.
Tagged as: faq, motion to dismiss unlawful police search
A defense lawyer may convince a prosecutor ("filing DA") from not pursuing criminal charges. A Filing DA reviews the police reports, and investigation submitted to him by the arresting police agency. If the Filing DA decides no charges will be filed, the case is referred to as a "reject." There are many reasons why a case is rejected, including problems of proof, interests of justice, or a non-desirous victim. Early intervention by a defense attorney often makes this happen. However, the prosecutor may always revisit the decision not to file criminal charges if the "Statute of Limitations" period has not expired. So, if say in neighbor dispute, one neighbor continue to harrass the victim, the prosecutor may choose to file charges over the first incident despite the initial decision to reject the case. Every criminal offense has a statute of limitations period that is set out by the Penal Code. In simple terms, the less serious the crime, the shorter the statute -- in other words, the Prosecutor has less time to decide on filing criminal charges. In misdemeanor cases, California law provides the statute is 1 year; in felonies, the statutes is 3 years or more depending on how serious the crime is. Once the Statute of Limitations expires, the offense cannot be prosecuted in court (with one exception, murder cases have no limitation - that is why cold case DNA cases are prosecuted sometime 10, 20, or 30 years later.)
Tagged as: california criminal laws, faq
The police officers that make the arrest complete all police reports about the crime, run a background check of the suspect, and do further investigation before submitting their work to a detective. As an example, in a domestic violence case, the detective in the assault unit usually follows up by contacting the witnesses and the alleged victim, to confirm whether the statements obtained by the responding officers were accurate and thorough. Often, this is they most propitious time for a defense lawyer to make a dramatic impact in a Pre-Filing Intervention, as the police usually know very little about the person arrested. The police then bring their entire investigation to the District Attorney's Office. A prosecutor reviews the documents to determine whether criminal charges are warranted. The prosecutor has the option of rejecting the case for criminal prosecution, filing a misdemeanor, or filing a felony charge. If charges are filed, the next step in the criminal process is in court, at an Arraignment. The law firm of Kestebaum Eisner & Gorin LLP is a criminal defense firm discussing aggressive prefiling intervention with the prosecutor's office.
Tagged as: california criminal laws, federal law and defense, high profile defense
Tagged as: faq
on whether famed movie director John McTiernan can withdraw his guilty plea to an information charging him with making false statements to a federal agent. The court vacated McTiernan's conviction and four-month prison sentence, ruling that a reasonable person in McTiernan's position would not have pled guilty if he had been properly advised by counsel as to the possibility of suppressing the evidence incriminating him in the Anthony Pellicano wire-tapping scandal. McTiernan, 57, who directed such films as Predator, Die Hard, and The Hunt for Red October, falsely told agents from the Federal Bureau of Investigations that he had hired Pellicano as a private investigator one time in connection with his divorce, but had no knowledge of Pellicano's illicit wiretapping activities. He later admitted that he had hired Pellicano in or around August 2000 and paid him at least $50,000 to conduct an illegal wiretap of two individuals, one of whom was Charles Roven, the producer of box-office flop Rollerball that McTiernan was directing at that time. Pellicano installed the wiretaps, listened to the subjects' business and personal telephone calls, and reported their contents to McTiernan. He also recorded his conversations with Mc Tiernan. FBI agents recovered a recording of a conversation between Pellicano and McTiernan pursuant to a search warrant in the investigation and prosecution of Pellicano. In the recording, Pellicano informed McTiernan that he had intercepted "tons of stuff" from the wiretapped subjects' phones. McTiernan instructed Pellicano to focus on instances where Roven was "saying one thing to the studio and saying something else to others," and said that catching the producer "bad mouthing" the "studio guys" would "really be useful." After the government informed McTiernan of the evidence against him, he entered into a written plea agreement, saying he would plead guilty to one count of lying to an FBI agent. The plea agreement set forth the elements of the offense, the statutory maximum sentence, the constitutional rights that McTiernan would be giving up, the stipulated Sentencing Guideline factors, and the factual basis for the plea. He signed the agreement and a declaration, attesting that his attorney, John Carlton, had advised him of possible defenses and that he was satisfied with Carlton's legal representation. He re-executed the agreement after the government filed the information against him. Following a plea colloquy, U.S. District Judge Dale S. Fischer accepted the plea and ordered that it be entered. McTiernan requested and obtained multiple continuances of his sentencing date until the government informed him that it would not agree to further continuances because it was dissatisfied with his failure to provide truthful cooperation in connection with his offense. Eleven days before McTiernan was scheduled to be sentenced, San Diego attorney S. Todd Neal advised the government that he would be substituted for Carlton as McTiernan's new counsel. When the government informed Neal that it would not move for a downward departure based on cooperation and would seek a custodial sentence for McTiernan, Neal informed the government that the defense was going to file a motion to withdraw McTiernan's guilty plea and suppress the recording. The motion alleged that McTiernan was entitled to withdraw his plea because his former counsel had failed to obtain any discovery materials from the government prior to the time McTiernan entered his pre-indictment plea and failed to advise him that he could have sought to suppress the recording on the ground that it was made by Pellicano without McTiernan's knowledge and consent and for an allegedly "criminal or tortious purpose," in violation of Title III and 18 U.S.C. § 2515. Fischer found that McTiernan's alleged reasons for seeking withdrawal lacked credibility. "[T]he most reasonable conclusion is that McTiernan seeks to withdraw his plea because the government has asked for a custodial sentence," Fischer wrote. "This is unquestionably not valid grounds to grant permission to withdraw a plea." She denied the motion and immediately proceeded to sentencing, imposing a term of four months imprisonment, followed by a two-year period of supervised release. Although McTiernan's desire to avoid a custodial sentence may have been his motivation for moving to withdraw his plea, Senior Circuit Judge Roger J. Miner of the Second Circuit U.S. Circuit Court of Appeals, sitting by designation, wrote for the appellate court that such motivation was not disqualifying if there was otherwise a "fair and just reason" to withdraw the plea. McTiernan was not required to produce evidence that his suppression motion would be successful on the merits, Miner explained, but only that proper advice about the possibility of suppression could plausibly have motivated a reasonable person in his position not to have pled guilty. Noting that Carlton's declaration in support of McTiernan's motion only stated that Carlson "did not see" any grounds "under the wiretap statute" for suppression, and Miner reasoned it did not establish that McTiernan was properly and adequately advised. "As long as a criminal or tortious purpose is a realistic possibility under the circumstances - which it assuredly is here - there is nothing inherently implausible about the proposition that a reasonable person would not have pled guilty and would instead have sought through discovery to establish an illicit motive for the taping," Miner concluded. The panel remanded for an evidentiary hearing to determine whether McTiernan could establish a fair and just reason to withdraw his plea.
Tagged as: faq
A finding that a group to which a defendant belongs is a criminal street gang cannot be based solely on the relationship between that group and a larger criminal organization, the Fifth District Court of Appeal ruled yesterday. The justices overturned the special-circumstance finding that a convicted murderer from Madera County, Michael Alan Williams, killed his victim as part of gang activity, as well as his separate conviction of actively participating in a gang. The court said there was enough evidence to prove that Williams' group, the Small Town Peckerwoods, was a criminal street gang, but that jurors may have "erroneously considered evidence related to some larger Peckerwood organization." In an unpublished portion of the opinion, however, the panel upheld Williams's conviction of the first degree murder of Rose Johnston in 2004. Johnston's burned out car was found in an orchard in rural Madera County two days after she was last seen alive, at a party attended by members of the Small Town Peckerwoods. Charred remains found in the car were later identified as hers. Investigators soon established that she spent time with members of the group and began questioning some of them, including Williams, who by that time was in jail for an unrelated offense. Williams said Johnston was a "homie hopper," meaning a woman who dated multiple gang members, but that he had no problems with her. He claimed to have seen her leave the party before he did. Investigators, however, ultimately concluded that Williams and fellow gang member Raymond Elisarraras killed Johnston by stabbing her and then drove the body out to the orchard in Johnston's car before setting it ablaze. They said Williams was upset because Johnston had sparked a rivalry between two of the members, leading to a fistfight at the party during which a knife was pulled. The two were charged with the murder, but Elisarraras committed suicide before trial. Among the witnesses at Williams' trial was a Madera police officer who qualified as an expert on gangs. He explained that the Small Town Peckerwoods, with about 16 members who wore "STP" tattoos, were a cell of a loosely organized gang with about 100 members on the West Coast. Members, he said, took their orders from "shot callers" who answered to higher authorities within the prison system, as indicated by a poem found in what was believed to be Elisarraras' bedroom: "We're Peckerwood Soldiers down/for a cause, California convicts/and solid outlaws. The rules/we live by are written in/stone, awesome an fearless we're/bad to the bone. We live in California Prisons/all long the way, the man tries/to down us with each passing day./Our bodies are solid an blazen/with in, warbirds on SS lightning/bolts the way that we think. When we go into battle our/hands are held high, some/may get hurt yet others may/die. It's a small price we/pay to survive in the yard, we're/Peckerwood Soldiers down for a/cause, California convicts and/solid outlaws." Besides the Small Town Peckerwoods, the Madera cells included the Crazy White Boys, Krazy White Boys, and Dirty White Boys, the officer testified. The crimes committed by the gang, he said, included arson, assault, and homicide. Williams was convicted of first murder with a gang special circumstance, and of participation in a criminal street gang, and Madera Superior Court Judge Jennifer Detjen sentenced him to life imprisonment without parole, plus one year. Presiding Justice James Ardaiz, writing for the Court of Appeal, agreed that testimony about the gang's activities and the crimes its members had committed supported a finding that it was a criminal street gang. Ardaiz also concluded, however, that the trial judge erred in allowing jurors to consider the larger gang's activities in determining whether the Small Town Peckerwoods met the statutory definition of a criminal street gang as an organization whose members have engaged in a pattern of felonies involving theft, guns, violence, or drug dealing. He distinguished People v. Ortega (2006) 145 Cal.App.4th 1344, in which the court held that the defendant could be found to have committed a crime on behalf of the Norteno gang in the absence of proof as to what specific subset of the gang the defendant belonged to. The evidence in that case, Ardaiz said, established that all of the subsets of the Nortenos shared the same goals and activities. "Here, by contrast, Dilbeck testified that Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization," the presiding justice wrote. "Insofar as is shown by the record before us, his conclusion appears to have been based on commonality of name and ideology, rather than concerted activity or organizational structure." Ardaiz went on to explain: "In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization. There was no such showing here. Dilbeck's general references to 'shot callers' answering to a higher authority within the prison system were insufficient, absent any testimony that the group calling themselves the Small Town Peckerwoods contained such a person, or that such a person was a liaison between, or authority figure within, both groups."
Tagged as: faq
A trial court violated the constitutional rights of a man it later sentenced to 40 years to life in prison for throwing billiard balls during a bar fight when it prevented him from impeaching the prosecution's key trial witness for lying under oath, the Ninth U.S. Circuit Court of Appeals ruled yesterday. Concluding that a reasonable jury might have received a "significantly different impression" of a witness whose testimony was crucial to establishing the defendant's intent had it known the witness's claim that he was not on probation was false, Judge Jay S. Bybee wrote that Michael Slovik was entitled to habeas corpus relief because the violation of Slovik's Sixth Amendment right to confront witnesses against him was not harmless error. Slovik was drinking at a bar named Gusser's Carousel in El Cajon, outside of San Diego, at approximately 1 a.m. in 1998 when a fight occurred during which he allegedly threw three billiard balls at a bartender and other patrons after being told to leave. He was tried on two counts of assault with a deadly weapon - the balls - and by means of force likely to produce great bodily injury, and two counts of battery. However, as noted by Bybee, "[t]he various witnesses and participants - as the State points out, indisputably not picked from a Sunday school choir - offered conflicting testimony." Among others, the prosecution relied at trial on the testimony of a patron, Mark Featherstone, who said that Slovik had been ejected after doing backflips throughout the bar, and that Slovik had thrown the balls at Featherstone's face while chasing him around a pool table. When Featherstone answered "no" when asked if currently on probation, Slovik's counsel - in possession of a form establishing that Featherstone had been placed on five years' probation for driving under the influence of alcohol - sought to impeach him, but the prosecution objected, and the trial court agreed that questioning Featherstone about his probationary status would be too time consuming. Ultimately convicted of one count of assault with a deadly weapon, one count of battery, and a reduced charge of simple assault, Slovik was sentenced to 40 years to life as a result of the California three-strikes law and other sentencing enhancements. The California Court of Appeal later reduced his sentence to 35 years to life, but upheld his convictions and rejected a state habeas petition. However, on Slovik's appeal from a similar ruling by U.S. District Judge Roger T. Benitez of the Southern District of California denying Slovik's federal habeas petition, Bybee wrote that the California Court of Appeal's decision upholding the trial court's limitation on use of the impeachment evidence was an unreasonable application of clearly established law. "The evidence that Featherstone was placed on five years' probation for driving under the influence was not being proffered to establish that Featherstone was unreliable because he was on probation, but rather to establish that Featherstone was unreliable because he had lied about being on probation," Bybee said. "It is clear to us that the jurors might have formed a significantly different impression of Featherstone's credibility if they had heard cross-examination showing that Featherstone was willing to lie under oath." Bybee similarly reasoned that the error was not harmless beyond a reasonable doubt because the jury - had it concluded that Featherstone was willing to lie under oath - could have discounted his testimony, and because Featherstone's testimony was crucial to establishing that Slovik intended to hit people with the billiard balls, rather than throw them aimlessly.
Tagged as: faq
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.