Los Angeles Criminal Law Blog

Heat of Passion? How Murder Trials Work

Posted on: September 3, 2008 at 11:09 a.m.

In Tennessee, a high school teacher's husband has admitted killing his wife's teenage lover, her former student, but it will be up to a jury to decide if it was premeditation, the heat of passion or an accident.

When it comes to murder charges, and other violent crimes, a defense often used by the defense is that the crime was an "act of passion." However, it can be difficult to prove such circumstances, because the defense often has to prove that there is no real motive other than an emotional response. In this particular murder trial, the husband came home one day and claimed he found the teenage lover there and demanded the teenager leave. The teen refused and the husband then called 911. He reported an intruder, "some guy who's stalking my wife."

After a few moments, Powell apparently backed down and McLean told the dispatcher the intruder was leaving. Seven minutes later, the wife called 911 and screamed, "My husband just killed someone. ... Please come. Hurry! Hurry!"

In a murder trial, those seven minutes can add up to 25 years or more in prison. In fact, prosecutors contend the facts point to premeditated murder. The defense attorney said what happened in those seven minutes between the 911 calls shows an act in the heat of passion, part of his argument for conviction on a lesser count like voluntary manslaughter. The Assistant District Attorney failed to get a first-degree murder indictment the first time the case went before a grand jury. The panel instead returned a second-degree murder charge carrying a 25-year maximum sentence. A second grand jury in December agreed to hand up the first-degree charge to prosecutors.

In California, where the death-penalty is legal, the difference between a first-degree and second-degree murder charge could mean death, or even decades longer in prison.

Tagged as: jury trial defense

California Drug Crimes: Different Drugs, Different Penalties, Aggressive Defense

Posted on: August 26, 2008 at 9:45 a.m.

Federal drug offenses can have a complex sentencing structure, dependent upon type of drug, the amount of drug, number of previous offenses and the surrounding factors of the arrest. Federal criminal lawyers in Los Angeles are quite familiar with the United States Sentencing Guildelines used to assess sentencing issues for drug charges in federal court.

For example, if a person is arrested for the first time in a drug trafficking violation with 10 grams of pure methamphetamine, he faces the possibility no less than 5 years in prison. However, if it's 50 grams of pure methamphetamine, then no less than ten years. Certain drugs, usually those considered more dangerous or addictive, such as methamphetamine, heroin, cocaine, PCP, crack and the like carry heavy time in jail as well as heavy fines. Second offenses can keep an individual in jail for a decade or more, and a third offense can equal life imprisonment. Of course, the goverment must first prove these offenses beyond a reasonable doubt. Aggressive criminal defense of drug charges works to preclude such heavy sentencing.

The federal drug offense penalty for trafficking marijuana is equally as harsh, but the amount one would need to get a 10-year+ sentence is 1,000 kilograms or 1,000 or more plants. Possessing 100 - 999 Kgs or 100 - 999 plants would amount to a sentence of 5-10 years. Both of these sentences are for first time drug offenses.

What it comes down to, is federal and state drug enforcement agencies take all drug offenses seriously; one statistic shows that there were 95 arrests per hour in the United States in 2006 (up from 2 per hour in 1966), and that's just for marijuana. During the past two decades, California experienced a 25-fold increase in the number of drug offenders sentenced to state prison.

Every drug offense, from possession to trafficking should be taken seriously, and competent attorneys are needed in every case. Life sentences are possible, in both state and federal court, where the recovered quantity is high and there is an extensive criminal history (example: three strikes legislation in California).

Tagged as: drug crimes defense

Hit and Run: A Dangerous Crime

Posted on: August 26, 2008 at 9:45 a.m.

Hit and run crimes are quite deadly. People are killed almost daily by hit and run crimes, and those guilty of a hit and run face harsh criminal charges and penalties.

The criminal act of hit and run occurs when a person who is involved in a motor vehicle accident leaves the scene without properly identifying them self.

In recent weeks, the following hit and run crimes have occured all over the country:
Nicholas W. Davenport, 20, of Newburgh, IN was killed when he was struck by a car, apparently while walking to work through Green Springs Valley subdivision off Indiana 261 in Newburgh. The incident happened about 6 a.m.

In Philadelphia, PA a 5-year-old boy was struck and killed by a cab, and his mother is in serious condition.

A Durham man was charged with felony hit and run, as well as driving while impaired after hitting a man with his vehicle. Javier S. Hernandez, struck Jerome Taylor shortly after midnight then attempted to elude arrest and refused when a Durham officer told him to get out of his vehicle. Hernandez is also charged with resisting arrest and driving on a revoked license. His blood alcohol was measured at .15, according warrants issued in the incident.

In Bellflower, CA, a suspected drunken driver was in custody after he allegedly sideswiped a vehicle in Bellflower, fled the scene, and crashed moments later into a second car, injuring its driver.

These are just a few of the examples of how serious a crime this is, and how seriously law enforcement officials treat it.

If a person is convicted hit and run, he/she may be sentenced with:

- imprisonment
- large fines
- community service
- probation
- parole

Due to the life-altering legal consequences that are involved, it is always in a person

Tagged as: california criminal laws

Handling DMV Hearings

Posted on: August 25, 2008 at 9:43 a.m.

A DMV hearing is an administrative proceeding regarding the suspension or revocation of your driving privilege only, so it is unlike a court case. Both the State and Federal Constitutions provide that no person shall be deprived of property without due process of law. Due process of law entitles the accused to a notice of the action the DMV intends to take against a person's driving privilege and an opportunity to be heard, hence the term "hearing." After being arrested for driving under the influence, the accused has 10 days to schedule a hearing with the DMV.

The hearing has nothing to do with guilt or innocence, it strictly has to do with the person's privilege and the circumstances surrounding the arrest. During the proceeding, the following matters are discussed:
- Whether or not the accused took a blood, breath or urine test
- Whether the police officer had reasonable cause to believe the accused was driving a motor vehicle in violations of state codes and laws
- Whether the accused was placed under lawful arrest.
- Whether the accused was driving with a .08% or more by weight of alcohol in their blood

If a person refuses a blood, breath or urine test, then the proceeding will, in addition to the officer's proof and arrest procedure, check:
- Whether the accused was told that if s/he refused to submit to, or fail to complete, a test that person's driving privilege would be suspended for one year or revoked for two to three years
- Whether the police actually requested a blood, breath or urine test

A DUI attorney may actually represent you at the hearing. Simply having an attorney present may greatly increase the chances of getting the license back until trial, and may even help in the future with a DUI trial.

After being pulled over and arrest for DUI in Los Angeles, the arresting officer will confiscate the driver's license of the accused and hand over a pink slip (called at "Notice of Suspension," which acts a temporary 30-day license during the DMV hearing and DUI trial. After receiving the pink slip, the accused or the DUI lawyer has 10 days to schedule a DMV hearing.

The Los Angeles DUI attorneys at Kestenbaum Eisner & Gorin LLP specialize in the aggressive defense of DUI charges resulting from drunk driving arrests throughout Southern California. Our attorneys are Former Senior Los Angeles Prosecutors with more than 50 years experience litigating DUI charges in court and at DMV hearings.

Tagged as: violent crimes defense

Robbery and Melrose: An LA Mystery

Posted on: August 25, 2008 at 9:43 a.m.

Melrose Avenue, known more for high-fashion and shopping than for crime sprees, has seen a spate of robberies that have puzzled police. On August 22nd, a street side robbery occured for the 8th time such a crime has occured since August 8th. These crimes have usually been muggings, with theives approaching people in the evening as they walked to their cars or simply on the street. While armed robbery is reported as being down 18% since 2007, these armed robberies have terrorized shoppers and community members of late.

For clarity, a person who breaks into a home, business or locked car to steal is committing burglary. A person who steals from another person directly by force (like a purse snatch) or fear (threats or by using a weapon) is committing a robbery. Certain types of robbery have been singled out for stiffer penalties on the basis of where they occur (e.g., inside a home, near an ATM, etc.) or the status of the victim (e.g., taxi cab drivers) pursuant to California Penal Code

Tagged as: federal law and defense

Three Strikes Legislation Updates

Posted on: August 21, 2008 at 10:37 a.m.

In California, and throughout the rest of the nation, legislatures are updating the laws and sentencing structures of their Three Strikes rules, often making them more rigid. Below are some updates on activities in and out of California that are changing the laws regarding Three Strikes legislation:

- There was an effort this year in California, where a local group of families gathered signatures to try and get a measure on the November ballot that would amend California's Three Strikes Law. The main difference in the amended version is sentencing for those who commit a non-violent or non-serious offense as their third strike. Persons whose third strikes are non-violent or non-serious will be eligible for re-sentencing, rather than life in prison.
- Washington Gov. Chris Gregoire signed a bill that will strengthen the state's Three Strikes law to include felony offenses from other states. This means that Californians now have to be aware of laws in other states regarding Three Strikes, not just California.
- In Connecticut, the Judiciary Committee voted against one Three Strikes proposal, by a 25-16 vote, that called for mandatory life sentences for third time offenders.
- Last year in Ohio, the senate had hearings on a bill that would permit judges to lock up repeat felons for twice as long as current law allows. Judges could hand down maximum sentences without explanation for a second offense in any felony case. And criminals headed to prison for at least the third time could see their time doubled under a so-called Three Strikes provision.
- States, such as Indiana, are applying Three Strikes sentencing structures to immigration infractions for both individuals and companies.
- Foreign entities, including Canada, France and the European Union are all considering variations on "Three Strikes" sentencing rules.

If you are seeking counsel on a Three Strikes felony violation, contact the attorneys at Kestenbaum, Eisner & Gorin, LLP.

Tagged as: three strikes laws

California Propositions (NOV. 2008): Dangerous New Bail Law Proposed

Posted on: August 20, 2008 at 8:08 a.m.

Every November California practices its own brand of democracy by putting for propositions, many of which target criminal activity of some sort. This year is no different, and there is a highly controversial Prop. being proposed in regards to bail*.

Proposition 6, the "Criminal Penalties and Laws. Public Safety Funding. Statute" would require new state spending on various programs to combat crime and gangs, and to operate prison and parole systems. It would also eliminates bail for illegal immigrants charged with violent or gang-related felonies.

Targeting illegal immigrants is nothing new for those who attempt to get propositions onto the ballet, and non-citizens who are violent offenders are also easy targets. However, denying bail to these individuals may be denying them the rights given by the federal and state Constitutions. In fact, it seems a bit counterproductive, as non-citizens have the right to counsel from their home nation on certain matters. Attempting to keep them locked up not only keeps these non-citizens from returning to their home nations, but my infringe on their right to counsel (depending upon how the courts interpret the rule). There was a case in Texas recently where a man who was a Mexican citizen was put to death and not given the chance to speak with counsel from Mexico.

It will be interesting to see how this proposition is treated, and whether or not it passes.

*The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum.

Tagged as: bail and release, immigration consequences

Immigration and Crime: A Developing Situation

Posted on: August 19, 2008 at 9:28 a.m.

Over the past decade, government funding for immigration enforcement has more than tripled, laws like the 1996 Immigration Reform Act (IIRIRA) have increased the power of enforcement officers to monitor and detain non-citizens, and the immigration detention system has become the fastest growing section of the U.S. prison industry. In this climate, the dangers of over-reaching enforcement practices that breach the basic civil liberties of immigrants (and citizens alike) has grown tremendously.

A possible defense in criminal immigration cases, immigration counsel can argue that reversal of a removal order is required when an immigration judge plays an improper prosecutorial role in the proceedings. When the judge abandons his or her role as an unbiased arbiter of fact and law, and becomes a prosecutor, the court contravenes its responsibilities as a neutral fact finder.

The Immigration Court's decision should be reversed if the record clearly demonstrates that the judge played a prosecutorial role outside the scope of the court's responsibility as an unbiased trier of fact and law. The judge clearly acts as an aggressive prosecutor if s/he attempts to establish that the Respondent was guilty of a crime.

Developing situations in immigration and criminal law include:
- The increasing number of immigration raids throughout the state and the country.
- South Carolina's new bill; its central planks forces employers to screen new employees' citizenship by one of basically two ways: using a federal Web-based verification system, or by requiring an S.C. driver's license, which is only given to citizens.
- San Francisco's sanctuary ordinance, which shelters non-citizens, even if convicted of a crime.

Tagged as: immigration consequences

Child Pornography and Educators: A Scary Mixture

Posted on: August 18, 2008 at 9:40 a.m.

Most parents send their children to school without worrying much at all about whether or not their teachers are in possession of child pornography. However, just last year there were a number of instances where educators throughout southern Califorina were investigated and/or prosecuted for possessing child pornography.

Two Los Angeles area teachers were arrested in 2007 on suspicion of possessing child pornography according to U.S. Immigration and Customs Enforcement officials. The suspects include a teacher at Pasadena

Tagged as: child pornography pc 311_11

Three Strikes Laws: 14 Years and Counting

Posted on: August 15, 2008 at 2:26 p.m.

Three strikes laws are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. While the three strikes laws were designed to be a deterrent to criminals, the general trend of crime in America is the same in states without three strikes statutes as they are in states with them.

The increased incarcerations have filled California's prisons to the brim. As of 2007, the system holds over 170,000 prisoners in custody in a system designed for 83,000, and most California prisons currently hold populations more than double their design capacity.

In fact, the constant protest regarding Three Strikes Law doesn't just come from activists and alleged criminals. Hon. Jesse W. Curtis, who passed away on August 5, was a judge for 40 years in the U.S. District Court for Central California before stepping down over the rigid Three Strikes sentencing guidelines. It has been proven that the three strikes laws are not deterrents to crime at all, since as many as 70% of those sent to prison, once released, will recycle back within three years. Obviously there is a disconnect.

Another flaw in the Three Strikes system is how violent and non-violent offenders are treated with the same set of laws. Thieves and rapists face the same punishment. Even crimes that may fall under the same umbrella are prosecuted in the same manner, for example:
- Michael James is serving 25 years to life under the three-strikes law for passing a bad check for $94.
- Michael Schneider is serving 28 years for stealing $43 million from 57 investors.
- Santos Reyes, George Anderson, Linda Susan Teague, Gary Ewing and Leandro Andrade are serving a total of 176 years, and the most serious criminal among them is Ewing. He stole three golf clubs.

Bias in the courts can lead to other serious violations of justice. Recently, a man who was convicted of stabbing and wounding his mother in a 1998 trial and sentenced to 30 years to life in prison under the three-strikes law because of previous felony convictions, was granted a new trial by a federal appeals court, which said the prosecutor removed at least one black juror for racial reasons. How many other prisoners are serving decades long prison sentences because they stole two pizzas, were at the wrong place at the wrong time or simply had a skin color that was too dark?

If you or someone you know is facing a Three Strikes violation, contact the attorneys at Kestenbaum, Eisner & Gorin, LLP.

Tagged as: three strikes laws

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