Los Angeles Criminal Law Blog

Forced Mental Examinations Unlawful, Penal Code Section 1054

Posted on: July 2, 2008 at 12:46 p.m.

A recent decision by the California Supreme Court Verdin v. Superior Court, wrestled with the issue of "diminished actuality" or "diminished capacity." This describes an individual's mental capacity as it pertains to the ability to have the mental will to commit a crime. This term can be used by the defense in order to protect an accused individual if s/he does not have the mental capacity to stand trial.

The major issue was whether a defendant can be forced to undergo a mental examination requested by the prosecution. In this particular case, the defendant attacked his wife and daughter and was found by the police sitting naked on his front porch, claiming he'd killed his daughter. Thankfully his wife and daughter were alive, although they'd been beaten and a firearm had been discharged during the fray.

In the past, if a defense attorney claimed his/her client was mentally impaired, or suffered from "diminished actuality," the prosecution would seek and successful obtain a court order requiring the accused to undergo a mental examination, to be conducted by an expert of the prosecution's choosing. Obviously, a forced exam raises the issue of constitutional protections, and exsposed the system's has major flaws. Many cases supported the court's right to allow the prosecution to test the defendant as the prosecution saw fit.

However, in the above mentioned case, the California Supreme Court ruled that the trial court could no longer make such an order. It limited the trial court's powers, stating it only has the right to order discover motions explicitly stated in Penal Code section 1054.3. This is an important ruling in criminal defense, as it gives California attorneys greater flexibility to serve their clients, and justice, in defending those individuals whose mental capacity may be in question. While this specific decision only applies to pre-trial testing, it may spread to mid-trial or post trial testing as well. That has yet to be decided, however it does mean that defense attorneys have an increased ability to defend their clients.

Tagged as: federal law and defense

A Criminal Case DISMISSED Due to Police Misconduct

Posted on: July 1, 2008 at 12:38 p.m.

Criminal Defese Attorneys in Los Angeles have to be mindful of police misconduct being a reality. A Pitchess Motion, previously discussed in the Criminal Law Blog, is a method through which defense lawyers are able to access prior evidence of police misconduct through personnel records. Here is an example of a recent misconduct case which led tp felony charges being dismissed.

In the last six months, the media, politicians and law enforcement officials have increased their attention on gang activity in and around Los Angeles County. This has led to a number of arrests, usually involving drug and/or violent crime. However, a major drug case took a turn when a man arrested on drug charges and accused of being a gang member was seemingly "set up" by the police who arrested him.

The man was arrested on drug charges, as police alleged that during a chase he threw away a bag containing cocaine and crack. However, it was revealed in court that a surveillance camera in the apartment the man was chase into showed evidence favoring the defense. The video showed that it took police over 20 minutes to find the drugs they said they saw thrown away. It also recorded audio of the police making comments about changing the report, as one officer is quoted as saying "Be creative in your writing [of the report]" and another officer acknowledging the comment.

As police and law enforcement officials are under a great deal of stress to prosecute drug matters and to stop gang activity, matters such as this will arise on occasion. Defending the rights of the accused is vital, as police reports may or may not be completely accurate in terms of detailing the arrests, charges, evidence and so forth. This individual may have gone to jail for many years with such a conviction, both possession and gang membership, and it all could have been based on faulty police reports. The actual charge was possession with intent to sell, which carries jail time, fines, probation and more.

The individual charged lived in fear for a year of jail time. However, the police offered the man a two-year jail sentence if he plead guilty. Speaking with an attorney before agreeing to any deal with law enforcement officials is vital, as it saved this man jail time and a potentially ruined life for drug charges.

Tagged as: california criminal laws

Supreme Court Strikes Down Death Penalty for Raping a Child

Posted on: June 25, 2008 at 10:25 a.m.

In Louisiana a law was passed that would allow a judge or jury to sentence an individual convicted of raping a child to the death penalty, however The Supreme Court of the United States struck this law down. This law was passed even though it has been 44 years since someone in America was sentenced to death for a crime other than murder. Child abuse, specifically child molestation and sexual abuse, has come under intense scrutiny from family and victims' rights groups all over the country.

In Massachusetts, for example, the state legislature is attempting to ban probation for child rapists, meaning that these individuals would have to serve time for the crime committed. This is an incredibly controversial topic, as every community wants to protect their children from being harmed by pedophiles, and the idea that a repeat offender would be in the neighborhood boils the blood of most parents.

There are some legitimate challenges however to laws that seek to bring harsh punishments to these criminals. For one, while victims absolutely can and should have rights, the rights of the accused must be protected and accused as well. For another, the term rape may be a bit more challenging to define when it comes to a child. It may seem grotesque to attempt to define something such as child rape, but if it means the difference between sending someone to jail for 15 years and sending them to jail for 2 years, the definition matters quite a bit.

Sexual offenses against children is a highly emotional matter, and this heavy emotion has created laws such as "Megan's Law" which seeks to protect children and punish offenders and repeat offenders. Being placed on the sex offender list is a permanent punishment, and having to register as a sex offender in your neighborhood is not only embarrassing, but can make it impossible to find a place to live in a decent neighborhood.

The rights of the accused in matters such as these never seem to be important, especially when the crimes and/or accusations are so hideous, however justice and a fair trial are the foundations of our criminal justice system.

Tagged as: sex crime accusations

South Los Angeles and White Collar Crime

Posted on: June 24, 2008 at 11:53 a.m.

The media makes a big deal about white collar crime on Wall Street, with backroom deals and embezzlement seemingly around every corner, but Crenshaw Blvd. isn't all that different from Wall Street when it comes to white collar crimes. Fraud, embezzlement, theft and other such crimes have ruined the reputation and record of numerous officials and individuals in L.A.

For example:
Martin Ludlow, now a volunteer at Dorsey High, pled guilty to fraud when he was charged with using union workers and union money in his city council campaign.
Numerous officials of mortgage firms have been arrested on charges of fraud which are tied to the current real estate crisis in America, much of which is focused in Southern California where the real estate economy fell the hardest.
A number of city council and local government officials have been accused of fraud and theft in the last few years, which as affected the outcome of numerous elections.

White collar crime is defined as a crime committed by a person of respectability and high social status in the course of his occupation. These crimes can harm a community, especially when the individual guilty of the crime is a respected member of his community. The crimes usual are fraud, insider trading or theft of funds. The penalties for white collar crimes include jail time, fines, and probation, as well as loss of respect and most likely losing one's job in the process.

Tagged as: theft, white collar crime fraud theft laws

Domestic Violence: Felonies, Misdemeanors, and Rights to Child Custody

Posted on: June 17, 2008 at 4:26 p.m.

Los Angeles Criminal Defense Attorneys frequently encounter cases where there are claims of domestic violence and abuse. These typically take the falls within one of two different scenarios: (1)a long-lasting abusive relationship or (2)unpredictable violence by one or both parties at the time of break up. The first scenario is a lot more serious, and leads to serious felony charging. However, the the second scenariou is typically isolated and does not recur if the parties do not reconcile. Charges of domestic violence are aggressively pursuen by Los Angeles prosecutors in the wake of OJ, and other cases, where the aggressor was not stopped, punished, and counseled before the homicide.

As a result, Domestic violence and domestic disputes are never simply matters that can be sorted out. They often involve quite a bit of history, and as with all emotional matters, rarely is the truth black-and-white. When children are involved, matters become far more complicated for both sides of the dispute. The risk of violence may be greatest, in the course of child custody issues. Below is some useful information for individuals going through domestic disputes and/or domestic violence where children are involved:

- If a father is involved in a domestic dispute and faces a domestic violence charge, there is a great likelihood that the judge will award custody to the mother. In a 1991 Census, almost 38% of father's weren't granted visitation rights. Further, 90% of custody battles end up favoring the mother.
- Jail time for domestic violenceconvictions can range from 1 year for misdemeanor crimes, and three years in prison or more for felony convictions.
- If you are accused of domestic violence but the alleged victim attempts to withdraw the charge, you can still be tried and convicted.
- Restraining orders can often be hard to prove and often more difficult to enforce. They make make the winner feel good, but have no real impact on whether the other party continue calling or harrasing him or her, even if the police gets involved.
- There are support groups and battered women shelters for women who are suffering from violence in their homes.

Tagged as: california criminal laws, domestic violence pc 273_5

The Rule of Lenity, The Crime of Money Laundering

Posted on: June 15, 2008 at 9:50 p.m.

On the assumption that all readers will have by now be informed of the ridiculous (beastial pictures on judicial websites) and the sublime (yesterday's Supreme Court decision affirming the availability of habeas corpus for Guantanamo prisoners), let me deal with something in between: two defense victories in the Supreme Court on June 2nd in cases interpreting the federal money laundering statutes.

The unanimous opinion written for the Court by Judge Thomas in United States v. Cuellar is of more limited utility, in that it deals with a specific section of 18 U.S.C. section 1956 prohibiting the transportation of illegal proceeds to conceal them. Nonetheless, what is refreshing is that the Court does what so few lower courts do: it reads the statute narrowly, as criminals statutes should be read, rather than giving them the broad interpretation always desired by the prosecution. In Cuellar, money was being sent back to Mexico concealed in a car to pay members in a drug smuggling operation. The fact that the concealed money was clearly proceeds of a drug operation did not stop the Court from holding that the smuggling was not a money laundering operation, because, while the money was concealed in order to transport it, it was not being transported in order to conceal it, the required element in the relevant provision of section 1956. The Court ruled that the purpose of the money laundering statutes was to criminalize attempts to give criminal proceeds the appearance of "legitimate wealth." Remarkably, the decision did not merely reverse due to a faulty jury instruction, but actually held Cuellar not guilty as a matter of law.

In the second case, United States v. Santos, Justice Scalia demonstrated that while when he is bad, he is very bad (the Guantanamo cases), when he is good, he is very, very good. He threw future money laundering prosecutions into chaos by holding that the statute applies only to a criminal operation's profits, rather than simply gross receipts or operating expenses. When Justice Scalia believes in something, damn the consequences, and he does believe in fair notice to the citizen of what is criminal and he does believe in the rule of lenity. Writing for a four judge plurality (himself, Thomas, Ginsberg, Souter), joined by Justice Stevens' concurrence, Scalia observed that the term "proceeds" in the money laundering statute could mean either receipts or profits; given that ambiguity, "under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal statutes to be interpreted in favor of the defendants subjected to them." Music to our ears, and language applicable to state statutes as well.

Tagged as: theft, white collar crime fraud theft laws

The Dangerous World of Child Pornography

Posted on: June 12, 2008 at 11 a.m.

Child pornography is illegal, and there is very little leniency in the law. With the ease with which individuals are able to obtain child pornography via the Internet, state, local and federal law enforcement officials have increasingly been looking to crack down on potential violators. The Supreme Court of the United States has again and again reaffirmed laws prohibiting creating and disseminating child pornography.

However, there are various sides to this issue and the prosecution of these laws can often net unintended victims. For example, those in the many artistic communities across the nation see what they are creating as quite different from child pornography. However, these individuals have often been arrested, charged and convicted under laws prohibiting child pornography. Also, people often considered religious zealots have attempted to use child pornography laws to interfere with the adult film business, which has time and again been considered legal.

The laws governing child pornography often change though; in 2002 the Supreme Court struck down a 1996 law because it interfered with legitimate educational and scientific studies. However, the most recent developments have led to tougher laws and stiffer penalties for child pornography. This has also led to sex offense databases across the nation containing the information of anyone who has violated child pornography laws. Being put on this list is a permanent punishment.

One of the ways the law enforcement or government agency prosecuting child pornography laws can error is in how they collect information. For example, while Internet providers have agreed to block child pornography, and they often give their information to the agencies investigating child pornography crimes, there are still constitutional guidelines the agencies must follow in collecting evidence.

For more information on the defense of child pornography charges, please contact the attorneys at Kestenbaum, Eisner & Gorin, LLP.

Tagged as: california criminal laws, child pornography pc 311_11, internet crimes defense, sex crime accusations

Internet Crimes: What Are They and What Are the Consequences?

Posted on: June 12, 2008 at 10:29 a.m.

Every so often a new medium for communication comes along and brings with it a new field for the law. The Internet is nothing new in terms of historic advancements in the technology, however it is a new arena for the law. Internet crimes are many, and they include everthing from identity theft to sexual offenses.

An Internet crime is defined as any crime that involves the Internet. For example, when an individual over the age of 18 contacts someone under the age of 18 through the Internet for the purposes of a sexual encounter, that is an Internet crime. One of the challenges for the accused is that many Internet crimes can also be federal offenses and can carry with them far greater charges than the same crime committed under state jurisdiction. For sex crimes, if the offender contacts someone under age that is also in another state, then that's a double whammy as crossing state lines also makes it a federal offense.

Internet crimes include kidnapping, sexual offense, bank robbery, credit car fraud, harassment, phishing, scams, espionage and more. The level of offense can range from smaller crimes to major felonies, however due to the amount of research and investigation it usually takes to charge and convict someone of an Internet crime, most cases are on a grand scale.

Protecting children is often a major focus for Internet crime laws, as children as the most vulnerable. Using chat rooms to contact children for sexual purposes or with other unsavery motives is against the law. Having an attorney with experience and knowledge in defending the accused in Internet crimes is vital, as the law is ever changing and only someone with experience will be able to provide a solid defense.

Tagged as: high profile defense, internet crimes defense, sex crime accusations, theft, white collar crime fraud theft laws

Weapons Charges and Dennis Farina

Posted on: June 12, 2008 at 10:09 a.m.

Dennis Farina, star of the television show "Law & Order" and the movie "Get Shorty," was arrested on weapons charges for bringing a gun to an airport.

Back in May, the 64-year-old actor was booked in the felony case for possessing a case with a semiautomatic .22 gun. The actor spent a day in the Van Nuys jail and posted $35,000 bail. Farina claimed to have forgotten he had the gun with him. Farina isn't the only high-profile individual to have had this happen to him; Snoop-Dog was arrested at an airport for similar charges, as was the son of former presidential candidate Mike Huckabee. Both were carrying weapons into the airport, which is illegal.

In California, especially in cities such as Los Angeles and San Francisco, weapons and firearms laws are particularly stringent, and the general public must be aware of this.

Below are some tips on how to handle firearms and weapons related charges:

1. Contact an attorney - Law enforcement may not notify you of your rights entirely, and security at the location where you've been arrested may not act according to the law. An experienced attorney will be able to help you with this.
2. Cooperate with police - While you do have the right to remain silent, you don't have the right to resist arrest, fight with the police or obstruct justice. This may help with sentencing.
3. Be aware of your surroundings - Places like airports, schools and other public places will be particularly sensitive to someone bringing firearms or weapons with them. Be aware of this when you're traveling to a school, a park, any major city or the airport.
4. A serious enough weapons charge could count against you as a felony or under California's Three Strikes laws.
5. Any weapon can and will be checked for recent crimes, and even if you aren't the person who committed the crime, it could lead to jail time.

Tagged as: california criminal laws, counterfeit goods pc 350, federal law and defense, jury trial defense

Illegal Narcotics and the U.S./Mexico Border

Posted on: June 10, 2008 at 10:54 a.m.

Southern California has a number of factors affecting it which causes the laws throughout the state to often look strange to the rest of the nation. One such factor is the border that California shares with Mexico. Prosecuting drug laws can be difficult due to the challenges of having to extradite criminals across both sides of the border, and the differing drug laws in each nation. Other states bordering Mexico include Texas, Arizona and New Mexico.

Recently, a drunk driver plowed into a bicycle race near the Mexican border in Texas. Part of the challenge in attempting to prosecute is the citizenship of the individuals injured as well as the individual accused. Drug policies can be even more difficult, as witnesses may not have citizenship in the country they witnessed the crime, making it difficult for law enforcement agencies to get them to testify.

The popular television bounty hunter Dwayne "The Dog" Chapman had his challenges with this issue as he arrested an American citizen while he was in Mexico, which violates Mexican law. Smuggling drugs across the border is a federal offense, and could bring charges on both sides of the border.

If you would like to talk to an experienced attorney regarding drug related charges, or any other criminal matter, please contact the attorneys at Kestenbaum, Eisner & Gorin, LLP.

Tagged as: california criminal laws, drug crimes defense, high profile defense

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