Los Angeles Criminal Law Blog

Insufficient Evidence for Homicide to proceed to Trial: Penal Code Section 995 Motion to Dismiss

Posted on: July 23, 2008 at 3:09 p.m.

Criminal offenses and special allegations may be dismissed by way of a California Penal Code Section 995 Motion, if evidence at the preliminary hearing is insufficient to have the jury consider the charged conduct. Los Angeles Criminal Defense Attorney frequently use the 995 Motion to dismiss charges before a trial. In other words, a criminal defense lawyers prevails without having to go to trial on the charges.

A recent successful 995 motion was considered by the California Court of Appeal, after the trial judge granted the motion and the DA appealed. The Court of Appeal agreed with the trial judge's decision that a three-year-old

Tagged as: california criminal laws, motion to dismiss unlawful police search

Organized Crime, Gangs and Consequences

Posted on: July 23, 2008 at 9:25 a.m.

Organized crime and gang activity are situations that police, the media and politicians often pay great attention to, and this leads to laws that can be extremely harsh for those accused of belonging to a gang. Many reports have surfaced of late about feet washing up on shore in the Pacific Northwest and Canada. The feet are alleged to be involved in some sort of gang activity or organized crime. Some authorities believe people who got on the "wrong side" of certain people had their feet cut off, and may have been killed.

In Los Angeles, gang activity is said to be increasing in volume. Authorities are targeting those individuals thought, or accused of, being involved with gang activity.

Gang crimes are quite varied, everything from graffiti to murder. Gangs are also often involved in drug activity in the communities they inhabit.

The penalties for belonging to, or being affiliated with, a gang come from both state and Federal authorities. The United States Senate passed the Gang Abatement and Prevention Act of 2007, which attempted to prosecute gang activity by defining new federal criminal offenses and boosting federal criminal penalties for gang crimes. While some criticize the law as vague and that it infringes upon local law enforcement, Congress is attempting to curb gang violence through more strict laws.

Attorneys defending those implicated in gang related crimes must have the kind of knowledge and experience that will allow them to understand the laws, the law enforcement philosophy and the nature of the justice system. The attorneys at Kestenbaum Eisner & Gorin LLP have decades of experience and have a track record of successfully defending clients from a variety of criminal charges.

Tagged as: california criminal laws, gang allegations

DUI and Probation

Posted on: July 22, 2008 at 1:52 p.m.

A Driving Under the Influence conviction most likely bring with it some form of probation, whether or not jail time is involved. Probation usually gives a certain length of time in which the convicted must stay clear of similar convictions. For example, Khloe Kardashian, featured on E! Entertainment Television's "Keeping Up With the Kardashians" reality show and daughter of Los Angeles attorney Robert Kardashian, had to report to jail for violating her probation in relation to a prior DUI conviction.

A judge earlier this month sentenced the 24-year-old to up to 30 days in jail after she admitted violating her probation by failing to enroll in an alcohol education class and clean up roadside trash.

Jail overcrowding forced officials to release her early, just as they have with inmates, including other well-known personalities such as Nicole Richie and Lindsay Lohan.

For those individuals not blessed with celebrity, the laws can be fierce for those with multiple DUI offenses. A second offense will lead to a license suspension of up to 2 years, 96 hours to 1 year in county jail, a third offense can equal license suspension of up to 3 years, 4 months to 1 year in county jail, a fourth offense is license suspension of up to 4 years, 6 months to 3 years in county jail or state prison. All offenses may also include probation, alcohol classes or counseling, and fines of up to $1,000.

The Los Angeles DUI attorneys at Kestenbaum Eisner & Gorin LLP are experienced with DUI charges, the science behind blood alcohol content and the complex legal system surrounding DUI charges.

Tagged as: counterfeit goods pc 350, violent crimes defense

Child Pornography Defense: Criminal Laws Upheld by the U.S. Supreme Court

Posted on: July 22, 2008 at 7:43 a.m.

Internet downloading of child pornography has been a hot-button law enforcement issue in the past year. Los Angeles criminal lawyers are seeing more and more arrests, through the cooperation of local L.A. police department and federal agents.

Criminal defense attorneys should be aware that the U.S. Supreme Court has recently upheld a strict new federal laws that makes it a crime to send messages over the computer that offer or seek child pornography, even when no such pornography exists.

The 7-2 ruling gives prosecutors a powerful weapon to go after those who talk about child pornography online. It also appears to take away a defense for those who say the material they were discussing involves computer images, not depictions of real children engaged in sex.

These type of charges are very serious, carrying substantial prison time. Typical defense inquiries in these cases include 1)who actually downloaded the pornography and 2)who possessed the photos or video at the time of the police arrest.

Tagged as: child pornography pc 311_11

Parole Search of Vehicle's Passenger - Unlawful

Posted on: July 21, 2008 at 6:34 p.m.

A parole search is often used by police officers to justify a warrantless search of a car or home - when they know a subject is on parole. The search does not justify searching someone who is with the parolee, without separate legal justifications. Los Angeles criminal lawyers can file a Motion to Suppress Evidence, pursuant to Penal Code Section 1538.5, to argue to the judge that the stop of a car and/or the search of a house were unconstitutional. A successful motion typically means that the criminal case will be dismissed.

Here is an example of a recent case were the parole search was deemed to be unconstitutional by the Court of Appeal.

A police officer conducting a parole search of a vehicle driven by a male parolee lacked authority to search the distinctly female purse he found on the floorboard of the seat from which the car

Tagged as: probation and sentencing laws

California Three Strikes Laws: A Mine Field

Posted on: July 21, 2008 at 9:21 a.m.

In 1994, California enacted the infamous Three Strikes Laws which handed down mandatory and extended periods of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. Since that time, prison populations have increased 25%, showing they have not been any real deterrent to crime.

Under the Three Strikes Laws, the state punishes shoplifting and similar crimes as felony petty theft if the person who committed the crime has a prior conviction for any form of theft, including robbery or burglary. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, previous strikes for home burglary), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years). It's almost as if the state uses prior convictions to imprison people they no longer want to prosecute or deal with, regardless of circumstances.

California also counts as strikes offenses in any of the other 49 states, as well as Federal crimes. Results of the Three Strikes Laws are incredibly unfortunate, both for the convicted and the tax payer. As of 2007, the California prison system, which is designed to hold 83,000, holds 170,000 inmates.

Throughout the years, various media outlets have investigated the gross negligence in the California prison system, as well as the affects the Three Strikes Laws have had on individuals and communities. California citizens have even attempted to pass laws adjusting the Three Strikes rules, however the propositions have failed in 2004 and 2000.

The attorneys at Kestenbaum, Eisner & Gorin, LLP are experienced with Three Strikes Laws, their consequences, and how to manage the system and situation that defendants find themselves in.

Tagged as: three strikes laws

Pro Per Representation: Does Representing Yourself Make Sense?

Posted on: July 14, 2008 at 3:40 p.m.

Pro Se representation, or representing yourself in court/acting as your own legal counsel, is highly controversial, to say the least. In most cases that receive media attention, a violent criminal with a questionable mental state defends himself/herself. However, the practice isn't that uncommon, and it happens much more often on a small scale. Foregoing the use of an attorney in a criminal or civil procedure may seem like a cost-effective idea, but the question remains - is it a wise choice to a defend a criminal case in Southern California courtrooms?

In the case of actor Dylan McDermott, he's chosen to represent himself during a divorce proceeding. The challenge for Mr. McDermott is, can he afford to make mistakes and lose ground on the settlement?

In a recent decision, WILLIAM M. HALLEY v. STATE OF MONTANA, in The Supreme Court of the State of Montana, a defendant claimed that he was denied his legal rights, in part due to interference of his attempted pro se representation. He claimed the attorneys that were appointed to him gave him ineffective counsel. He was found guilty in the case for which he defended himself, and was given a 40 year suspended sentence. So, in the end he greatly annoyed the attorneys in the case, the judge and filed several motions concering portions of the law he did not have a good understanding of, which all led to being found guilty.

There are many "apparent" reasons to defend yourself, cost, intelligence, seeming know how, but in the end a skilled and experienced attorney can not only take the burden off of your shoulders, but can navigate the legal waters in a way you can't. Whether it's a DUI matter, drug charge or some other felony or misdemeanor offense, an experienced criminal defense attorney may save you thousands of dollars in fines, years in jail and a damaged criminal record.

The ins and outs of the law, the ability to negotiate and plea bargain, and the experience of being able to defend against a knowledgeable prosecutor is invaluable. Hiring a plumber makes sense if a pipe bursts and hiring an attorney makes sense if the police arrest you.

Tagged as: federal law and defense

Former Child Star Wanted for Murder and Child Abduction

Posted on: July 9, 2008 at 10:06 a.m.

Defending charges involving a life sentence is challenging, but not impossible. Experienced Los Angeles criminal defense attorneys, especially who are former trial prosecutors, often undertake the defense of charges involving murder, manslaughter, and other types of homicide.

Mark Everett, former star of such shows as "Pee Wee's Playhouse" and movies like "Stand and Deliver" is wanted by authorities for killing his live-in girlfriend and abducting their three-year-old son. Everett, whose real name is Manuel Benitez, began to sell drugs after his child acting career tailed off and hid this fact, and other elements of his past, from his then girlfriend. He'd been arrested before on drug charges and on weapon charges, and is now being pursued for these crimes.

When individuals such as this former star compound matters by being arrested for unrelated crimes, it makes the job of the defense attorney that much more difficult. Judges and juries will rarely sympathize with a defendant if he demonstrates no remorse or flaunts an arrogant personality. An aggressive courtroom defense along with the assistance of jury consulting, a thorough defense investigation, and a relentless cross-examination of the state's evidence may lead to a reduced offense or a complete acquittal.

Murder charges in California are covered under the state's Three Strikes laws , if the individual has a prior record, and carry sentences of life in prison or the death penalty if the crime is severe enough. Everett has been on the run for years. He is down but not out. A aggressive courtroom defense may save him a life behind bars, if his criminal lawyers demonstrate that the evidence is insufficient to prove his guilt.

Tagged as: domestic violence pc 273_5, jury trial defense

Los Angeles, Gun Laws and the Second Amendment

Posted on: July 8, 2008 at 10:47 a.m.

A recent court decision may have future impact on the criminal possession of firearms in California.

On June 26, The Supreme Court of the United States of America may have permanently altered gun laws throughout the United States, California and Los Angeles with its judgment on the matter of District of Columbia v. Heller. Justice Antonin Scalia wrote the majority opinion in the case (reviewing Second Amendment rights), which supported a citizen

Tagged as: firearms crimes

Animal Cruelty, a California Felony

Posted on: July 3, 2008 at 2:17 p.m.

Los Angeles Criminal Lawyers are sometimes hired to defend cases of animal cruelty. While rare, the charges often bring public outrage. The Los Angeles County District Attorney's Office even created a Special Unit to prosecute such cases.

A homeless man in Los Angeles was arrested and charged with multiple felony counts of animal abuse for allegedly soaking cats in gasoline and lighting them on fire. In 2008 there have been multiple cases of animal abuse reported and prosecuted by the Los Angeles District Attorney's office, including illegal cock-fights, animal poisoning, shooting of animals, dog fighting and more.

The Prevention of Cruelty to Animals Act of 2003 increased penalties for people found guilty of animal abuse. Aggravated cruelty can lead to $11,000 in fines, two years in jail or both if convicted. While some states prosecute this crime as a misdemeanor, California considers it a felony.

Michael Vick's conviction for dog-fighting has brought a great deal of attention to the area of animal abuse, and sentences and penalties have increased as a result. There are a number of people who want animal abuse to be more than just a felony, but to bring with it intense jail time.

Here are some animal abuse crimes that can/will carry with them serious penalties:

- Killing an animal that belongs to someone will often net a more harsh penalty, in part because of the emotional attachment and in part because of the destruction of property.

- Killing an endangered animal, or an animal protected by a state agency, can lead to serious jail time and fines.

- Involvement in illegal animal fights, such as dog fights or cock fights, can lead to a number of felony charges, in part because gambling is usually involved.

Tagged as: federal law and defense, jury trial defense

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