An alleged Los Angeles burglary crime suspect was shot to death by Los Angeles County Sheriff’s deputies in Azusa this morning after he pulled a knife out. The deputies were trying to arrest two suspected car thieves around 1:00 in the morning when the two suspects fled the scene. After a short pursuit, deputies cornered one suspect, who then pulled out his weapon. A deputy fired several rounds at the burglary suspect, who was pronounced dead at the scene. His identity has not yet been released. The second suspect has also not yet been identified and has yet to be apprehended by law enforcement. Theft is a broadly-used term in California that can be used to mean all manner of theft crimes. A Los Angeles burglary is specifically the illegal entering a building or home in order to deprive the owners of their property by removing it. Larceny is the removal of property from a person or place with the intent to deprive the owner of their property. Larceny and burglary in particular deal with tangible items such as cars, jewelry, artwork or electronics items. This is different from crimes that involve real estate or services, which are items that cannot be “carried away" by a suspect. Theft crimes in Los Angeles can be charged as either misdemeanor or felony criminal offenses. The difference in these cases is generally the value of the items stolen: if the value is above $400, then the theft is considered Grand Theft and is nearly always a felony offense. If you are found guilty of grand theft in Los Angeles, you could find yourself in either a county jail or a state prison for up to 16 months, as well as being sentenced to probation, parole, community service, fines, restitution or any combination of all six. Our Los Angeles criminal defense attorneys also wanted to share a word about dealing with Los Angeles law enforcement agents: they can and will use potentially lethal force against you if you are threatening their safety. If you find yourself being stopped (in any situation) by police, drop your weapon if you have one. Do not run, because then they will have a reason to chase you. If you are carrying anything that resembles a firearm or other weapon (even a something as common as a baseball bat), they can shoot at you, or even simply arrest you because they can claim that they were “in fear for their lives." Police are legally allowed to stop you and ask you your name and address for pretty much any reason. They can arrest you if they suspect you have committed a crime. If they ask you anything beyond your name and address, ask to speak with an attorney first. If you have been arrested or charged with a criminal offense, such as a burglary crime, call the Los Angeles criminal defense attorneys at Kestenbaum, Eisner & Gorin today. Our attorneys have decades of combined experience in defending against criminal charges of all types. In many cases, improper police conduct or gathering of evidence may even be enough to get your charges dropped and your case dismissed. You can reach us at 877-781-1570.
Tagged as: faq
The Los Angeles criminal defense attorneys at Kestenbaum, Eisner and Gorin have worked for years in district attorneys' offices, and can provide the kind of sophisticated criminal defense that investigates every aspect of a case - including potential misconduct by the Los Angeles police investigating the alleged crime. Throughout Los Angeles' history, investigations into the police have happened on a regular basis. Recently, the Federal Bureau of Investigations has begun a probe into several members of the Burbank Police Department amidst allegations of the excessive use of force by as many as 12 current and former Burbank policemen. Federal investigators have requested information from the police department that specifically focuses on several officers’ use of Tasers, pepper spray and defensive tactics from as far back as 2003. The probe will examine the possible violation of suspects’ civil rights. The Los Angeles County Sheriff’s Department is also involved in the investigation. The excessive use of force by law enforcement officials is a fairly sticky topic these days. Admittedly, Los Angeles police and Los Angeles County Sheriffs Deputies have a very difficult and very dangerous job. On a daily basis they may deal with both alleged and convicted criminals, some of whom may become physically violent. In many cases, law enforcement agents must chase, fight or physically restrain suspects, many of whom might be armed with a weapon of some sort. Sometimes retaliating in kind is necessary in the line of duty, but very often, police may get carried away and engage in what is called the excessive use of force, or police brutality. Police brutality occurs when police and other law enforcement officials use more force than is necessary to apprehend or arrest a criminal suspect. Police have very strict guidelines at to when and how they may collect evidence of a crime against you. However, the line between law enforcement acting in a brutal or unfair manner or acting appropriately in any given situation is less clear. A police officer may use a weapon against you if he or she is “reasonably" fearful for their life. If you pull out a weapon, or anything that resembles a gun, they may “reasonably" fear for their lives and injure, if not kill you with weapons of their own. If you have been arrested by police and believe you have been the victim of police brutality, or that you were treated unfairly by member of the Los Angeles Police Department, call the attorneys at Kestenbaum, Eisner & Gorin, LLP today. In many instances, criminal proceedings against you can be dismissed because of the improper conduct of police officers. Our attorneys have over 50 years of combined experience in defending against criminal charges of all types and know which details to look for. Call today to begin preparing your case.
Tagged as: faq
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
The California Legislature realizes the strong likelihood of false convictions in criminal cases, as reported in the L.A. Times on June 27, 2007. One pending bill is aimed at reducing the number of false confessions. It would mandate electronic recording of interrogations of suspects in homicides and violent felonies who are in police custody. Often the police fail to record statements made by suspects. As a result, officers and detectives are free to suggest whatever they want in front of juries, without the support of a recording. This is very problematic especially in cases where suspects are facing life in prison, or the death penalty. Further, unlawful coercive conduct by the police is known to happen in interview rooms, where the suspect may be badgered, denied contact with family an friends, and even threatened with having own family members investigated. Resulting false confessions have led to numerous suspects being convicted, who were later exculpated based on DNA evidence. Another pending bill would require corroborating evidence for the testimony of jailhouse informants, who have been shown to lie sometimes to receive reduced sentences or other benefits. Informants seeking to get out of jail early have strong motives to incriminate other inmates, and have done so many times in the past implicating innocent individuals. A third bill required that the California attorney general, in consultation with other key stakeholders in the criminal justice system, to develop new guidelines for lineups presented to eyewitnesses to see if they can identify suspects. Suggestive line-ups had led to numerous wrongful identifications, causing innocent people to be sent to prison for many years. Arthur Carmona of Orange County came to Sacramento to testify on behalf of the bills, in front of the legislature. He told committee members how at age 16 he was arrested, convicted and imprisoned for committing strong-arm robberies in Orange County, based on a mistaken identification by an eyewitness. He spent 2 1/2 years in prison before errors were discovered and he was freed.
Tagged as: faq, motion to dismiss unlawful police search
This criminal conduct is called "embezzlement," and is typically charged in California criminal courts as a violation of Penal Code Seciton 487(a), commonly known as Grand Theft (if the theft exceeds $400). The offense carries a maximum of 1 year in the county jail, or 3 years in prison. If the amount of theft exceeds $50,000, the "Economic Crimes" enhancements are applicable, and the prison time is increased to 4 years and up. The Criminal Law Blog authors have represented many clients charged with "Embezzlement." Where appropriate mitigation is presented to the Court, and the District Attorney, the large majority of our clients have not gone to jail or prison. This is because we worked out alternative dispositions involving community service, restitution, probation, and fines instead of jail. What if the employer wants to drop the charges? The police and prosecutors are usually unwilling to dismiss a case once it is filed, as they are concerned that resources have been expended to investigate, document, and bring the case to court. However, jail or prison are distinct possibilities whenever embezzlement, or other white collar crime charges, are prosecuted in state or federal court.
Tagged as: faq, theft, white collar crime fraud theft laws
Typically forensic evidence refers to physical evidence such as fingerprints, DNA, blood spatter, gun shot residue, and ballistics. This physical evidence assists to establish what happened during an alleged criminal act. Some say science is an objective witness, with no reason to lie, no reason to distort the truth, and no biases. Forensic evidence is presented in court through two types of expert witnesses (1) those who gather the evidence and (2)those who interpret what the evidence mean in terms of related scientific principles. For example, criminalists collect blood smears from the crime scene. DNA experts then test the blood in the lab, against available samples provided by a suspect. Criminal lawyers then subpoena the DNA experts to court to establish if someone's genetic materials is or is not present at a crime scene. While pure science does not distort, expert witnesses infuse their subjective opinions into the trial. Their motives are clearly relevant as they are typically financially compensated by the side that calls him or her to the witness stand. Say the Prosecutor calls a government DNA expert at trial to explain that Defendant's DNA was located at scene -- thus establishing that he may be responsible for the crime. In response, the defense lawyers will call its own DNA experts to disagree with these results, or to question the testing methodology. The high-profile Spector trial has experts from the prosecution and the defense battling over how established scientific principles apply to their divergent opinions.
Tagged as: drug crimes defense, faq, jury trial defense
I have been falsely accused of a crime. Does that mean no charges will be filed, and I should speak to the police without an attorney? I have nothing to hide.Posted on: June 20, 2007 at 1:13 a.m.
Many cases are resolved with police just closing their files, because the evidence of a crime in simply insufficient. The court system does not get involved. However, just as with many things in life, the world is not perfect and police officers do make mistakes. People have been falsely accused of rape, domestic violence, murder, and even drug possession because officers were either making negligent mistakes in their investigation, or intentionally framing suspects, or intentionally lied about probable cause to justify an otherwise unlawful searches of homes, cars, or even someone's person. People have served years in prison, only to be released upon DNA testing. I have heard clients tell me "Hey, I am innocent, I figured I will go explain the events to the police and this will all go away!" Unfortunately they were wrong. At times, police officers are inclined to disbelieve what a suspect tells them, and may not have the time or motivation to fully investigate a client's story. What happens? The next thing the suspect learns is that he is arrested, placed into custody, and does not know to clear his name. The Law Blogger has personal experience with representing clients who are simply innocent -- these are some of the most difficult cases! In sum, someone who is completely innocent may need representation the most.
Tagged as: faq
Will a DUI cause my California license to be suspended? Can I represent myself in Court or in front of the DMV in a license suspension hearing?Posted on: June 16, 2007 at 9:57 p.m.
One of the consequences of a DUI arrest is a possible suspended license. Possible does not mean definite, and there are numerous ways to get your driving privilege back sooner than later. Many people ask, "Can I just represent myself on a DUI and with the DMV?" While the Law Blog has a definite bias since it is administered by Los Angeles Criminal Attorneys, the Law Blog retorts "would you perform surgery on yourself?" The U.S. Constitution has been interpreted by the U.S. Supreme Court as giving everyone to right to act "pro-per," in other words to represent yourself without an attorney. The Law Blogger was a District Attorney for 10 years, is a law professor, and has been in criminal defense for years. The Law Blog is convinced that pro-pers cannot do nearly as good a job (even if the litigant is a civil attorney who does not have a criminal defense or prosecution background). As a District Attorney, the Law Blog dealt with many pro-pers and saw numerous errors committed by litigants representing themselves. Getting back to license suspension - on a first time DUI, a license is suspended for 120 days. A win at the DMV hearing would prevent a suspension. However, if you are convicted of a first-time DUI in court, the DMV could still pull your privilege to drive. In court, then, the only way to keep your license is to have the DUI charge dismissed all together. If this is not possible, there is a way to get the suspension reduced. You must file an SR-22 with the DMV (ie proof of insurance) and proof of registration in a first-time alcohol program, known as the AB-541. In turn, the DMV will reduce the suspension to 30 days, and return you the privilege to drive with restrictions for 90 days. All this is quite technical and time consuming, especially when you include the continuous legal updates that are taking place in this area of law.
Tagged as: dui drunk driving defense vc 23152, faq
Can the police search you or your property without a search warrant? What happens if the search is illegal?Posted on: June 10, 2007 at 9:08 p.m.
This question addresses Search and Seizure Law which provides protections to all people from unreasonable police infringement on their rights, as provided in the Fouth Ammendment in the U.S. Constitution. The bottom line in court is whether the search is legal or not. In cases where there is a search warrant, a judge has reviewed the officers' reasons for the search in advance. In other words, the judge has signed off on the search, meaning that if what the police told him under oath him is true, there is sufficient cause to search a certain location. In cases where there is no warrant, the police upon observing suspicious activity justify a search of your person, your car, or your home based on their own opinion. Because this type of search is not judicially preapproved, it receives more scrutiny from courts after someone is arrested and charged. A defense attorney files a Motion to Suppress Evidence to prevent illegally obtained evidence from being used in court against a client pursuant to the provisions of Penal Code Section 1538.5. If the judge finds the police violated a person's constitutional rights, the officers did not have sufficient cause to search you or your property. Thus the recovered incriminating evidence, ie. drugs, firearms, or any other illegal items, is excluded from court which often leads to the case being dismissed. Or, if the police stopped your car for improper reasons to later conduct a DUI investigation, the entire DUI case is dismissed.
Tagged as: faq, juvenile law, motion to dismiss unlawful police search
What defense options are available to a client facing charges in juvenile court? Can juvenile records be sealed?Posted on: June 5, 2007 at 12:49 a.m.
California law provides that juvenile court is about rehabilitation not punishment, except in cases of serious violence such as murder and rape. Unlike adult court, all proceedings are confidential and not open to the public. The law attempts to straighten out youthful offenders through monitoring school achievement, home life, curfew, and general attitude. Essentially a juvenile court judge is a surrogate parent. Minors are given multiple chances through the Welfare & Institutions Code to have case dismissed, and charges sealed, if they follow the court's orders. A juvenile has the same constitutional rights (except a jury trial) to challenge the evidence against him in a court through cross examination, and calling own witnesses. Most minors are eligible to have their records sealed after they turn 18 years old. The exception to these flexible laws are cases of murder, rape, and the sort, wherein a minor who is at least 14 years old may be prosecuted in adult court, if the DA chooses to send him to state prison. The law feels that the seriousnes of these crimes outweighs the need for rehabilitation.
Tagged as: faq, juvenile law
Proposition 215 was passed by the voters in California in 1996, commonly referred to as the Compassionate Use Act. That was followed 8 years later by Senate Bill 420, enacted in 2004. These two propositions have been codified in the California Penal Code section 11362.775 et seq. The federal government does not recognize this law, and thus sales of marijuana under the federal system are criminalized.
Unfortunately, the Los Angeles Police Department has decided not to enforce the laws of California, but to act as "de facto" DEA agents. It is this conflict between state and federal laws that leads to abuses of power by the local police.
In a recent case handled by the firm, a client had substantial monies and several ounces of marijuana ordered returned to him by the Court, after the D.A. dismissed the case in the middle of a preliminary hearing. The case had substantial problems of proof, as we had the recommending medical doctor ready to testify and the LAPD "expert on drug sales" was not familiar with the provisions of Medical Marijuana laws, packaging, or business operations. In sum, cross-examination of the police officers on the case demonstrated they knew very little about the law.
Tagged as: drug addiction and treatment, drug crimes defense, faq
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
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."
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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.
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