In what is turning out to be an incredibly complicated case, a former San Fernando city councilwoman has pleaded not guilty to charges of battery and vandalism while the alleged victim in the crime appeared in the courtroom and called for charges to be completely dropped. Maribel De La Torre was having an affair with married former councilman Mario Hernandez when the two had an argument on June 28th that allegedly turned violent. De La Torre is accused of attacking Hernandez, including punching, slapping, choking and pushing him, as well as smashing both his laptop computer and a glass frame. De La Torre maintains that she was acting in self defense and is innocent of the charges against her. When asked about the current state of her relationship with Hernandez, she replied that there was “no relationship,” though Hernandez has been at both of her court appearances and has declared that he will not testify against her. Outside the courthouse, Hernandez reiterated that he did not intend to testify and instead called attention to what he believed was improper handling of the case by the San Fernando Police Department. He would not elaborate on what he meant by the statement.
The apparent truce aside, Hernandez asked for, and was granted, a temporary restraining order against De La Torre on July 3rd of last year. Two days later, on July 5th, De La Torre also filed for a temporary restraining order against Hernandez, indicating that she believed Hernandez was the aggressor, not her. Later in July both Hernandez and De La Torre agreed to drop their respective restraining orders and settle the matter privately.
Hernandez’s assertion that he will not testify against De La Torre, as well as his call to have the charges against her dropped, are falling on deaf ears. Under state laws, if evidence of domestic abuse is found by law enforcement agents, charges against the alleged perpetrator can still move forward. Anyone familiar with domestic violence laws can tell you that alleged victims of domestic abuse can and frequently do either recant their stories or decide not to press charges against their abusers. These laws were put in place in part to prevent people from staying in potentially abusive and even dangerous relationships and endangering their safety. Since Hernandez, who has resigned from his post as council man, is still considered a witness to a crime, prosecutors maintain that he can still be ordered to take the stand and testify. It remains to be seen, however, what would happen if he simply refused to answer questions while on the stand.
Tagged as: battery, domestic violence pc 273_5, los angeles battery defense, Los Angeles Criminal Defense Attorney, los angeles criminal defense attorney, los angeles domestic violence defense attorney, san fernando violent crime defense lawyer, vandalism pc 594
In the California legal system, probation violations are a serious matter that can carry severe penalties. In the wake of a criminal conviction, instead of time served in prison, a court may assess either formal or informal probation to a defendant depending on the crime that was committed. Los Angeles criminal defense attorneys who have first hand experience with probation understand that even under the best conditions, probation is a challenging situation.
Formal Probation, or Supervised Probation, requires that a defendant meet with an assigned probation officer at regularly scheduled meetings for the duration of the probationary period. Informal Probation, or Summary Probation, doesnt require regular meetings with an assigned probation officer, but it does require that the defendant complete certain terms of sentence and to stay out of further trouble for a specified period of time. Both Formal and Informal Probation generally require either community service, drug testing, counseling, physical labor or any combination of the four. The length of the probationary period generally varies depending on the offense committed as well as the ability of the Los Angeles probation attorney to properly negotiate and work with the judge and prosecutor.
Any number things can count as a probation violation but some of the most common are failure to pay, comply, report or appear, violation of terms, possession of illegal substances, committing another crime and, finally, being arrested. A failure to pay violation is assessed when the defendant does not pay either fines or restitution required by the court. Failure to comply occurs when a defendant fails to complete their terms of probation such as rehabilitation or community service. Failure to report or appear occurs when a defendant does not show up for a scheduled meeting either with the court or their probation officer. In terms of probation violations, if a defendant is found in possession of illegal substances such as drugs or weapons, then the defendant has incurred a probation violation. Since probation is issued in lieu of prison time in a criminal conviction, the goal is obviously for the defendant to be on their best behavior during their probation; hence, being arrested and committing crimes are also considered serious probation violations.
If you are found to have violated the terms of your probation, a number of penalties can be assessed depending on the severity of the violation. This is when having a skilled criminal defense attorney in Los Angeles who is experienced with probation comes in handy. When a violation occurs, the defendant on probation is usually arrested and brought to court for a probation violation hearing. The Judge and prosecutor will take several factors into account when determining what the penalty of the violation should be including the nature and seriousness of the violation, whether or not there is a history of previous probation violations, any new criminal activity stemming from the violation, whether the violation occurred at the beginning or end of the probationary period, the probation officers view of the violation and any mitigating circumstances surrounding the violation. Penalties for probation violation include, but are not limited to: an extension of the probationary period, an amendment of probation terms, revocation of probation and possible time in prison. In such a serious matter, finding a knowledgeable, competent attorney to aggressively represent you is of utmost importance. An experienced Los Angeles criminal defense attorney will help you avoid an extension of the probationary period or the possibility of prison time.
Tagged as: vandalism pc 594
Probation violations are usually quite specific, meaning that an individual has to commit a particular offense in order to "violate" their probation. However, not every law and ruling is clear, and this could lead to troublesome probation violations. Los Angeles criminal defense attorneys who represent those accused of probation violation know that open-ended laws make it difficult for their clients to be rehabilitated, or even obey the law.
Probation is the suspension of all or part of a jail sentence; the criminal who is "on probation" has been convicted of a crime, but instead of serving jail time, has been found by the Court to be amenable to probation and will be returned to the community for a period in which they will have to abide to certain conditions set forth by the Court under the supervision of a probation officer; or has served part of the sentence but has been released before its end.
General conditions may include maintaining employment, abiding to a curfew, living where directed, abstaining from unlawful behavior, following the probation officer's orders, not absconding, and refraining from contact with other individuals, who may include victims of the original crime (such as a former partner in a domestic violence case), potential victims of similar crimes (such as minors when the crime involves child sexual abuse), potential witnesses, or those who have partnered with the offender in the earlier crime.
Unlikely, perhaps, but it's possible under a ruling this week by the California Supreme Court, which upheld a judge's order requiring a man convicted of drunken driving to tell his probation officer if he had any pets in his home. "Pets residing with probationers have the potential to distract, impede and endanger probation officers" who make unannounced visits, Chief Justice Ronald George wrote in the 5-2 ruling.
Although the court focused on the dangers posed by frightened or vicious dogs - citing the fatal mauling of a woman in the hallway of a San Francisco apartment building in 2001 and the subsequent murder conviction of the dog's keeper - both the ruling and the original judge's order covered all types of pets, regardless of size or potential menace.
So, at least in theory, a probationer's failure to reveal the presence of a pet turtle or hamster could result in a probation violation and a trip to the slammer.
Dissenting Justice Joyce Kennard chided the court majority in Monday's ruling for applying the same standard to "Jaws the goldfish, Tweety the canary and Hank the hamster" as to animals that might actually present a problem for a probation officer.
In a case where the probation violation is left unclear, or broad, it could give police the opportunity to arrest an individual for violating probation with very little actual offense occurring.
Deputy Attorney General Barry Carlton, one of the state's lawyers, noted that the original order required only that Staley's client, Alejandro Olguin, tell his probation officer whether he had pets. It didn't specifically bar Olguin from having any animal. Carlton said the court had rightly concluded that the probation officer, not the person on probation, should decide which pets might pose problems on a home inspection.
"We presume the probation department will make the appropriate decision," Carlton said. "If they hear the probationer has a goldfish, they'll file it away" and not worry about it. "But a decision about supervision of probationers and safety of law enforcement officers should be made by the probation department."
Probation officers make unscheduled visits and conduct unannounced searches of probationers' homes, missions that might be impeded by a snarling dog or a harmless pup that barked at a stranger's approach, Chief Justice George said in the majority opinion.
Tagged as: vandalism pc 594
Plea bargaining is an integral part of the American criminal justice system. Los Angeles Criminal Defense Lawyers and prosecutors rely on the process both in state and federal courts to resolve over 90% of criminal cases, without a jury trial. The process is essential to the proper functioning of the system, as there are simply insufficient court resources to provide a jury trial to every single defendant charged with either a misdemeanor, DUI, or felony offense.
A plea bargain is like any binding legal contract. The prosecutor and the defendant, through the assistance of his lawyer, agree on terms that they must honor in the future. But what about a siuation where a defendant feels that he was not adequately represented by his lawyer during a plea bargain with the prosecutors? What if the defense lawyer did not do an adequate investigation or the prosecutor withheld favorable evidence? The defendant would have an argument that his plea was not knowing or intelligent because it was based on improper advice or prosecutorial misconduct.
Withdrawing from a plea bargain does not get rid of all the criminal charges. It simply means the defendant can now contest the charges with a jury, and the prosecution is not bound by the lower sentence it had offered the defendant as part of the plea bargain.
A recent example from the Los Angeles criminal courts comes from a well-known federal case dealing with illegal wiretapping by a private investigator. A well-known movie director was able to argue that he can withdraw his guilty plea to an information charging him with making false statements to a federal agent. After the plea, and conviction, he was facing a four-month prison sentence.
The appeals court ruled that a reasonable person in defendant'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.The Defendant, 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
Tagged as: california criminal laws, vandalism pc 594
Los Angeles criminal defense attorneys can have real challenges when it comes to probation, in part because not all defendants understand the terms of their probation, or care enough to take it seriously. Probation is a serious matter, and not following the terms of probation properly, even on the smallest matters, can lead to further arrests, fines and even jail time.
Judges in the Los Angeles criminal courts take probation seriously, and any probation violations will be met with often swift punishment. Probation violation occurs when a person fails to adhere to the terms of his/her probation. When a person does not comply with the terms of his/her probation, he/she may be punished with the maximum sentence for the crime in which he/she was placed on probation for committing.
In such a case, only skilled Los Angeles criminal defense attorneys understand how to work with a judge and the prosecutor to get the best possible results for the defendant.
After a person is placed on probation, he/she is allowed to return to his/her home environment instead of jail. In order for a person to successfully complete the terms of his/her probation, he/she must follow the rules that were set forth by the court at the time he/she was sentenced. Once a person has been placed on probation, he/she may have to report to a corrections officer on a regular basis, or complete community service activities. If a person fails to complete the terms of his/her probation, he/she can be charged with probation violation by California law enforcement.
A probation violation doesn't have to mean a rich defendant fleeing the country during a murder trial. As any Los Angeles criminal defense lawyer will tell you, the charges can be simple. Recently, Michelle Rodriguez failed to fulfill the terms of her probation in a DUI case and faced jail time in Los Angeles as a result. She was actually shooting scenes for a television show during the process. Country singer Mindy McCready surrendered to authorities and served a 60-day sentence for violating her probation on a 2004 drug charge.
Kestenbaum, Eisner & Gorin, LLP is a criminal defense law firm that has been helping clients throughout Southern California contest their criminal charges and obtain superior results for years. Our skilled probation violation attorneys have over 50 years of collective court room experience and we are fully prepared to undertake our clients
Tagged as: vandalism pc 594
State Prison for Actor Lane Garrison: No Probation despite Court-Ordered Penal Code Section 1203.03 Diagnostic StudyPosted on: November 2, 2007 at 5:37 p.m.
This week, in Beverly Hills Superior Court, actor Lane Garrison was sentenced to 3 years 4 months in state prison. He was sentenced for a wreck he caused while driving intoxicated. He hit a tree in his SUV, killing a passenger and injuring two others. In court, at the time of sentencing, there were supporters of the actor, along with friends and family of the deceased victim. The court process provided a resolution to a highly emotional case.
Back in May 2007, Garrison's L.A. criminal defense lawyer persuaded the judge to agree to a diagnostic study pursuant to Penal Code Section 1203.03. The actor pled "open" to the court to the charge of a vehicular manslaughter (deceased victim), along with charges of DUI causing great bodily injury (two passengers injured).
And "open" plea means it is up to the court to decide on the level of punishment, and is completely within the court's discretion. The DA is not part of this dynamic, and provides his arguments during the sentencing hearing. In this case, as the DA did not offer a plea bargain that the defendant agreed to, the only option from the criminal defense perspective, short of fighting the case at jury trial, was to ask the judge for an open plea and a diagnostic study.
Experienced Southern California criminal lawyers frequently use the diagnostic study provision, to sucessfully obtain probation for their client, instead of prison.
The statute for the Diagnostic Exam reads as follows: 1203.03. (a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period. (b) The Director of the Department of Corrections shall, within the 90 days, cause defendant to be observed and examined and shall forward to the court his diagnosis and recommendation concerning the disposition of defendant's case. Such diagnosis and recommendation shall be embodied in a written report and copies of the report shall be served only upon the defendant or his counsel, the probation officer, and the prosecuting attorney by the court receiving such
report. After delivery of the copies of the report, the information contained therein shall not be disclosed to anyone else without the consent of the defendant. After disposition of the case, all copies of the report, except the one delivered to the defendant or his counsel, shall be filed in a sealed file and shall be available thereafter only to the defendant or his counsel, the prosecuting attorney, the court, the probation officer, or the Department of Corrections.
In Mr. Garrison's case, a diagnostic report was prepared by the Department of Corrections, and a sentencing hearing was held with character witnesses, supporters for both sides, and family of the deceased. At the sentencing hearing, after reviewing the diagnostic report, the judge ordered Defendant to serve 40 months in prison, which means he will do an actual 20 months (receiving credit for good behavior), and ordered him to pay restitution in the amount of about $250,000. The Defendant had no prior criminal record.
The Prosecutor argued that the Defendant should be sent away to prison for the maximum, 6 years 8 months. "A high school party," the DA said with disdain. "What's he thinking?" Garrison met the teenagers in line at a Pavilions supermarket, the prosecutor said. After buying them alcohol, they went to a party where he drank vodka and then went out to buy more alcohol with the teenagers in tow, the prosecutor said. The DA continued: "Before he gets in the car with these children, he's asked -- and everyone remembers this -- 'Are you OK to drive?' ...Before they leave, the defendant gives this answer: 'I'm from Texas. We can hold our liquor in Texas.' "
The police, after the crash, found Defendant to have a blood-alcohol level of 0.2%, more than twice the legal limit of 0.08%, and he tested positive for cocaine. Garrison filmed a tearful TV public service announcement about drinking and driving -- which did not come into consideration when the judge decided on sentencing, according to a court representative.
There were 3,600 signatures collected by friends of the deceased, parents, teachers and area residents urging the judge to hand down the maximum sentence. Heart-wrenching statements from family members and agonized apologies from Garrison were heard. Garrison explained: "This remorse is genuine and I've felt it every day," he said, telling the victim's family "how sorry I am that their son is never going to come back."
The judge did not hand out the maximum punishment, but refused to grant probation. "I think you are ultimately a decent human being who made a very bad mistake," Fox told Garrison. He commended him for taking responsibility and pleading guilty early in the court case. The judge also said that the public "has a right to know that conduct such as this, causing devastation such as this, needs to be punished."
Keep in mind, there was no jury trial here! Garrison essentially asked for the sentencing mercy of the court. He got it in part, although he failed to receive probation (which is often granted after a Diagnostic Study is ordered). No one left the court feeling completely happy - however, it appears justice was served, and the judge acted fairly with due consideration to both the prosecutor and defense side.
Tagged as: counterfeit goods pc 350, vandalism pc 594, violent crimes defense
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
The California Surpeme Court held that as long as just one of the aggravating circumstances relied upon to impose an upper term has been established by a jury beyond a reasonable doubt, the judge
Tagged as: federal law and defense, vandalism pc 594
Kestenbaum 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.