Southern California Defense Blog

On August 3, 2010, a driver for an alcohol wholesaler went to work with a semiautomatic rifle and allegedly opened fire, killing eight. The driver shot and killed himself as police approached to subdue him.

The driver, Omar S. Thornton, 34, was a new employee at Hartford Distributors in Manchester, Connecticut. The Teamsters Union stated that, despite his recent employment, he had already been identified as a disciplinary problem. A law enforcement official stated that Thornton had been suspected of stealing from the company.

Thornton was scheduled to go to work that day to meet with the Teamsters Union to discuss his disciplinary issues. It is unclear whether the meeting took place, but one of the identified victims was a local Teamsters official. Another identified victim was a member of the family that founded Harvard Distributors.

In California, murder is the unlawful killing of another human being with malice aforethought. (California Penal Code section 187(a).) Malice aforethought exists when there is a deliberate intent to cause great bodily injury or death, when the defendant acts with reckless disregard for human life, or when the death occurs during the commission of certain violent felonies. (California Penal Code sections 188, 189.) If the murder was done with premeditation and deliberation, it is first degree murder and punishable by death, life in prison without the possibility of parole, or 25 years to life in prison. (California Penal Code sections 189, 190.)

If you or someone you know has been accused of murder, manslaughter, or other criminal homicide, you will need an experienced Southern California criminal defense attorney who will vigorously defend you against these serious charges. At Wallin & Klarich, we have helped people accused of a variety of crimes, including murder, for over 30 years. Call us at (888) 764-2615 or visit our website at www.wklaw.com. We will be there when you call.

It was recently reported in the LA Times that the police arrested the alleged “Grim Sleeper” serial killer. Police went into the South L.A. home of David Franklin, Jr., 57, and arrested him without incident.

Franklin is charged with 10 counts of murder and 1 count of attempted murder. Nicknamed after taking long breaks between killings, the Grim Sleeper is alleged to have committed murders from 1985 to 2007.

Detectives used the controversial familial DNA technique to find Franklin. The familial DNA technique traces the DNA found at the scene of a crime and links it to a family member who has a sample of DNA in a criminal database. The DNA traces a close match in the Y chromosome of a male relative. With this information, detectives can identify any family members that would fit the description of the killer. This technique is legal in only California and Colorado.

Los Angeles District Attorney Steve Cooley said detectives used a piece of discarded pizza with Franklin's DNA to make a link with Franklin’s father’s DNA. With this information, the detectives mapped out the Franklin’s family tree and narrowed down the search to either Franklin or his brother. Franklin’s brother was ruled out to be the Grim Sleeper because he was too young at the time of some of the murders.

If convicted, the allegations against Franklin could make him eligible for the death penalty.

We will continue to monitor this case as news breaks. If you or a loved one is facing a criminal charge, it is important that you speak with an experienced Southern California defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in defending the rights of the criminally accused. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

On July 2, 2010, the city of Oakland, California, prepares itself for possible rioting as the trial of a white police officer accused of murdering an unarmed black man draws to a close.

On January 1, 2009, Bay Area Rapid Transit police officer Johannes Mehserle, 28, shot Oscar Grant after passengers accused Grant and others of fighting on a train. Mehserle claimed that he had meant to subdue Grant with a Taser, but accidentally drew and fired his handgun instead, killing Grant.

Mehserle may be convicted of second degree murder, voluntary or involuntary manslaughter, or could be found not guilty. (California Penal Code sections 189, 192(a), (b).)

Closing arguments concluded July 2, 2010. The jury began deliberating that afternoon.

The trial has gained significant public interest. The city of Oakland posted a message on its website from Oakland’s mayor and police chief stating that though they “understand that the community is grieving,” they “are dedicated to safe expressions of emotions during this difficult time” and “will not tolerate destruction or violence” in response to the trial verdict.

Under California Penal Code sections 187 and 189, the unlawful killing of another human being with malice aforethought and absent other circumstances is second degree murder. It is punishable by a 15 year to life in state prison. (California Penal Code section 190.)

Under California Penal Code section 192(a), voluntary manslaughter is the unlawful killing of another human being while in the heat of passion. It is punishable be 3, 6, or 11 years in state prison. (California Penal Code section 193(a).)

Under California Penal Code section 192(b), involuntary manslaughter is the unlawful killing of another human being while committing a misdemeanor or while performing a lawful act in a negligent way. It is punishable by 2, 3, or 4 years in state prison. (California Penal Code section 193(b).)

Under the mistake of fact defense, a person may have committed the criminal act, but because the factual circumstances were not as he believed, he did not have the requisite intent to complete the crime. (California Penal Code section 26.) If a person’s mistake of fact is reasonable, then even if he committed the criminal act, he will be found not guilty. If a person’s mistake of fact is unreasonable, then he may be found not guilty or liable for a lesser crime, depending on the crime and the requisite intent. Mistake of fact is not a defense to some crimes, such as unlawful sexual intercourse with a minor. (California Penal Code section 261.5.)

If the criminal act is murder, as is the case with Mehserle, if the jury finds that he was mistaken in fact regarding his firearm and the mistake was unreasonable, he may still be found guilty of involuntary manslaughter.

If you or someone you know has been accused of a homicide such as murder, you need an experienced criminal defense attorney who will review the facts and the law with you to get the best possible result. At Wallin & Klarich, we have over 30 years experience defending a variety of criminal matters, including murder and manslaughter. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

It was recently reported by the Associated Press that gunmen assassinated the front-running candidate for governor of a Mexican border state. Mexican President, Felipe Calderon, called the murder as a drug cartels seeking to influence local elections. The attackers ambushed governor candidate Rodolfo Torre's car as he headed to the airport in Ciudad Victoria, border state littered with violence as a result of rival turf battles between two drug cartels. At least four other people traveling with Torre were also killed. Drug gang violence has only increased since President Calderon deployed the Mexican Army to combat violent drug gangs.

Under California Penal Code section 187, murder is defined as the killing of a person with malice aforethought. First degree murder is defined as any murder perpetrated by willful or deliberation or means of a destructive device or by premeditation. (See California Penal Code section 189). Second degree murder is all other murder. In addition, punishment for first degree murder is a felony punishable by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Second degree murder is a lighter, yet still severe punishment, which is imprisonment in state person for 15 years to life. In this case, the assailants would be charged with first degree murder, as they likely spent adequate time preparing for the murder of Torre.

If you or a loved one is facing charges for murder or any other serious homicide crime, contact our Southern California attorneys at Wallin & Klarich. At Wallin & Klarich, our attorneys have over 30 years of experience in handling murder cases. Our attorneys will defend your rights and fight to get you the best possible result in your case. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

CNN recently reported that Ronnie Lee Gardner, 49, was executed by firing squad for the shooting death of attorney Michael Burdell during a failed escape attempt from custody in 1985 at a Salt Lake City, Utah courthouse. A hood was placed over Gardner's head and a paper target pinned to his chest. He was heavily restrained as a five-person firing squad took aim at the target and shot him. Gardner is only the third person to die by firing squad in the United States in 33 years.

The last time that California used firing squad for death row inmates was just before the state joined the union. Currently, under the California Penal Code Section 3604, the death penalty is carried out by the administration of a lethal gas or by an intravenous injection of a substance in a lethal quantity sufficient to cause death. If a person sentenced to death does not choose either lethal gas or injection within ten days after the warden’s service of an execution warrant, the default method is lethal injection.

Being charged with a felony that carries the possibility of death as a sentence is a grave offense. Choosing the right defense attorney could save your life. If you or a loved one has been charged with a serious felony you must seek the assistance of an experienced defense attorney immediately. Our attorneys at Wallin & Klarich have over 30 years of experience taking on cases just like yours. We will look at the particular facts of your case to determine the best defense strategy available to you that will result in the best possible outcome. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be here when you call.

CNN recently reported that Joran van der Sloot has been officially charged with the murder and robbery of a 21-year old student in Lima, Peru. Van der Sloot was also one of the prime suspects in the 2005 disappearance of American teenager Natalie Holloway, but was never charged due to a lack of evidence. Van der sloot is thought to be responsible for the murders of both Holloway and Flores.

In the current case, van der Sloot has been charged with the murder and robbery of Stephany Flores Ramirez after the two met while playing in a poker tournament. Video surveillance shows Flores and van der Sloot entering his hotel room together, and him leaving alone more than three hours later.

Van der Sloot admitted that he attacked Flores after she read an email on his computer regarding the Holloway case. It is reported that van der Sloot savagely beat Flores, eventually breaking her neck. After killing her, the police statement says that van der Sloot cleaned the room in an attempt to hide evidence of the crime, changed clothes and fled with Flores' money, bank cards and black Jeep.

Under California law, murder is a felony. There are two degrees of murder; first degree and second degree. Under California Penal Code (CPC) Section 189, first degree murder is any premeditated murder such as torture, lying in wait, or the use of a destructive device or explosive, or murder which is committed in the act or attempt to commit arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping. Most other types of murders are of the second degree.

Every person guilty of first degree murder will face the death penalty, life imprisonment without the possibility of parole, or 25 years to life. Every person guilty of murder in the second degree will face imprisonment in the state prison for 15 years to life. However if the person is guilty of second degree murder of a peace officer, the penalty is imprisonment in the state prison for life without the possibility of parole.

Under the CPC Section 211, robbery is defined as the wrongful taking of another’s property against his will by means of force or fear of immediate injury to himself or a relative. Robbery is also divided into first and second degrees. First degree robbery is any robbery of a person operating a public transportation vehicle, any passenger of a public transportation vehicle, robbery committed in an inhabited home including a boat and a trailer, or the inhabited portion of any other building, and any person using an ATM. Robbery of the second degree is any other type of robbery not mentioned.

Robbery is a felony, and is punishable as such. Under CPC Section 213, robbery of the first degree is punishable by up to 6 or 9 years in state prison depending on the type. Robbery of the second degree is punishable by up to 5 years in state prison.

Murder and robbery are some of the most seriously punishable crimes under California law. Simply being accused of committing either of the two could place a stigma on your reputation for the rest of your life. If you have been charged with murder or robbery, you must seek the assistance of an experienced Southern California criminal defense attorney immediately. Our attorneys at Wallin & Klarich have over 30 years of experience taking on cases just like yours. We will look at the particular facts of your case to determine the best defense strategy that is available to you that will result in the best possible outcome. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be here when you call.

In a recent decision by the California Court of Appeals, it was held that the trial court erred in admitting irrelevant and highly prejudicial gang evidence of the defendants' membership in a motorcycle club, where there was no evidence that the club was a street gang or a criminal enterprise, and where the prosecution offered this evidence in its case-in-chief primarily to show defendants’ criminal disposition to commit murder. (People v. Memory (March 5, 2010) Case No. Co54422.)

In California, evidence that defendants are members of a certain street gang is relevant to prove identity of those individuals suspected of violating the law. Moreover, gang evidence is relevant and admissible when the very reason for the underlying crime is related to gang activities. In Memory, however, the prosecution offered gang related evidence that the defendants were members of the Jus Brothers motorcycle gang. The prosecution wanted to show that membership in this gang required the members to carry knives and to fight when challenged by other people.

The court held that evidence of gang membership could not be introduced to prove intent or culpability of the defendants. The court found the evidence to be irrelevant. The evidence could not be admitted at trial where its sole relevance was to show defendants’ criminal disposition or bad character as a means of creating an inference that the defendant committed the homicide. By admitting this highly inflammatory and irrelevant evidence, the trial court committed reversible error resulted in a miscarriage of justice requiring reversal of defendants’ convictions.
Our firm has over 30 years of experience in representing clients in criminal matters and has been recognized as an AV rated law firm. Wallin & Klarich offers outstanding representation to clients charged with gang related crimes. We have the legal knowledge and the resources to ensure that your rights are protected. Please call us at (888) 280-6839 or visit our website at www.wklaw.com. We will be there when you call.

Ernesto Hernandez Avalos, a 23-year-old day laborer who murdered his boss by repeatedly hitting him with a shovel, then used a pickax to crush his head, was sentenced to 26 years to life in prison. In January of this year, Avalos was hired as a day laborer to work for a landscaping business owned by Woo Sung Park, a 45-year-old father from Rancho Santa Margarita. At a house in Irvine, Avalos reportedly beat Park with a shovel. When police arrived, Avalos still had the shovel in his hands. When police ordered him to drop the shovel, Avalos complied, only to pick up a pickax and deliver a blow to Park’s head, killing him instantly. During his murder trial, Avalos stated he took methamphetamines the morning of the murder and was angry that Park told him he was working too slow. Avalos’ public defender also alleged Avlos was fearful that his boss could attack him.

Murder in California is defined in California Penal Code Section 187. Murder is committed when someone commits an act that caused the death of another person with malice aforethought. Malice aforethought is a state of mind. It requires knowledge that through an action or omission, the result will be someone’s death. Malice can be expressed or implied. It is expressed when someone shows a deliberate intention to kill someone. It can be implied when there is no considerable provocation or when the circumstances show an abandoned or malignant heart. The punishment for murder can range from 25 years to life in prison, life imprisonment without the possibility of parole, or the death penalty.

At Wallin & Klarich, our skilled and aggressive criminal defense lawyers have been assisting those accused of a wide range of crimes, from minor infractions to murder, for more than 30 years. We will determine the best possible defense for your case and work to have the charged against you dismissed, acquitted, or lessened. To learn more about how the qualified legal team at Wallin & Klarich can help you with your case, call 888-280-6839 today or visit www.wklaw.com. We will be there when you call.

It was recently reported in the Orange County Register that a purported gang member is wanted in the kidnapping of his ex-girlfriend. Rudy Castellon, 23, allegedly went to his ex-girlfriend’s parent’s house. The mother refused to let Castellon see her daughter. Castellon is then accused of displaying a handgun and forcing his way into the home. Castellon allegedly pushed the girlfriend down the street. She returned the next day. Castellon is wanted on suspicion of kidnapping.

Under California Penal Code 207, kidnapping is committed when a person forcibly, or by any other means of instilling fear, steal or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county. Kidnapping is punishable by imprisonment in state prison for up to eight years.

If you or a loved one is facing a charge of kidnapping, it is important that you speak with an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling kidnapping cases. Our attorneys will fight to get you the best possible result in your case and to always defend your rights. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

The California State Bar Disciplinary Panel recently upheld a judge’s recommendation to suspend former Santa Clara County prosecutor Benjamin Field from the State Bar for four years. Field appealed to the State Bar Review Department’s finding that he had withheld exculpatory evidence and committed other misconduct in four cases he had prosecuted.

He was accused of violating court orders and directives, performing incompetently, failing to obey the law, withholding evidence, misleading a judge, and committing “multiple acts involving moral turpitude, dishonesty, or corruption.”

Field appealed the decision in hopes of receiving a lenient decision. Instead, he received a suspension from the bar for four years and five years of probation. The decision was made to “protect the public and the courts” and “preserve public confidence in the legal profession and to maintain high professional standards for attorneys.”

The first accusation of misconduct against Field was made in 1995. In a sexual assault case involving a minor, Field obtained a dental examination of the defendant, disobeying a court order that resulted in the judge suppressing the evidence taken from it. On two occasions in 2003, Field intentionally withheld a witness statement that was favorable to the defense in a habeas corpus proceeding involving a sexual assault case, and he intentionally withheld a defendant’s statement favorable to co-defendants in a murder case. In both cases that year, Field was found to have committed a discovery violation. In the latter murder case, one of the charges against the defendants was dismissed due to Field’s misconduct. And in 2005, Field made an improper closing argument in a sexually violent predator case that was deemed “deceptive and reprehensible” by the court presiding over the case. As a result, the appellate court reversed the judgment committing the defendant as a sexually violent predator.

Continue reading "District Attorney Violates the Law by Violating the Legal Rights of Defendants - How an Experienced Southern California Defense Attorney Can Help Ensure Your Rights" »

It was recently reported that nine youths have been charged in relation to the suicide of a 15-year-old girl in Massachusetts. Phoebe Prince, who had recently moved to South Hadley, Massachusetts from Ireland, hung herself after being raped and bullied by classmates since the start of the school year in September 2009. Prince committed suicide on January 14th. Initially thought to be a case of cyber bullying, it is believed Prince was bullied on and off the campus of her high school in the presence of teachers and fellow students.

Six teenagers, four girls and two boys, face charges of statutory rape, assault, violation of civil rights resulting in injury, criminal harassment, disturbance of a school assembly, and stalking. Three younger girls are facing delinquency charges. Three of the nine teenagers, who are 17-years-old or older, will be tried as adults.

Complicating matters, the parents of two of the teenagers have spoken to the media, insisting on the innocence of their children, stating the school bullying was nothing more than the exchanging of “a couple words.” It is recommended that the accused retain an attorney immediately after charges are filed and have any statements made through the attorney.

All of the charges the teenagers are facing are very serious. Statutory rape, assault, harassment, creating a disturbance, and stalking carry serious consequences in California. Out of all the charges, California statutory rape is the most serious. California "statutory rape," defined under Penal Code Section 261.5, takes place when any person engages in sexual intercourse with a person under the age of 18 (commonly referred to as unlawful sex with a minor). Statutory rape can be charged as a misdemeanor or a felony. As a misdemeanor, statutory rape can result in up to a year in jail with fines and probation. As a felony, it can result in four years in state prison with fines and probation.

Continue reading "Nine Charged after Bullying of Teenage Student Phoebe Prince Ends in Suicide" »

It was recently reported that a Pasadena couple was charged with torture and murder in the child death of their 2-year-old son, who was found dead in the family home. Maria Pelaez, 30, and Gabriel Diaz, 33, reportedly admitted to police that they taped the limbs of 2-year-old Rene Torres to restrain and punish him. Torres died from asphyxiation. It is alleged the toddler’s death was due to his mouth being taped shut.

Pelaez is arguing that Diaz was responsible for her son’s death, as she was not aware of what Diaz did to her son the night he died. Pelaez maintains she was nothing but a loving, doting mother and it would be absolutely, completely out of character to harm her child.

Murder in California is defined in California Penal Code Section 187. Murder is committed when someone commits an act that caused the death of another person with malice aforethought. Malice aforethought is a state of mind. It requires knowledge that through an action or omission, the result will be someone’s death. Malice can be expressed or implied. It is expressed when someone shows a deliberate intention to kill someone. It can be implied when there is no considerable provocation or when the circumstances show an abandoned or malignant heart. A conviction for murder can result in life in prison.

Continue reading "Pasadena Couple Suspected in Murder and Torture in Infant Death Of 2-Year-Old Son - California Penal Code Section 187 and Section 206" »

A Lifetime Revocation of Driving Privileges and How an Experienced Southern California Criminal Defense Attorney Can Help You Retain This Privilege - California Penal Code 245

The punishments associated with being convicted with a crime can lead to prison time, fines, probation, rehabilitation programs, and the loss of certain privileges. For many people, the most significant potential privilege to be lost is their driving privilege. Under California law, the Department of Motor Vehicles (DMV) will issue a revocation of driving privileges to a person convicted of California assault with a deadly weapon when a vehicle is used as the deadly weapon or instrument in that offense. The law holds that a felony conviction will result in a lifetime revocation of the driving privileges of the person convicted.

California Penal Code section 245 states any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury is guilty of assault with a deadly weapon.” As of 2009, the law states that if the deadly weapon used to commit the assault is a motor vehicle, the California Department of Motor Vehicles “shall not reinstate a privilege revoked under any circumstances. As such, the individual convicted of the crime will face a lifetime revocation of driving privileges.”

Continue reading "Potential Sentence for Conviction for Assault with a Deadly Weapon" »

The California Supreme Court has overruled a 35-year-old court precedent that allowed defendants in criminal trials to assert nonmutual collateral estoppel. (People v. Sparks, Feb. 8, 2010, No. S164614.) The high court ruled that a verdict regarding one defendant has no effect on the trial of a different defendant because courts should determine the propriety of a prosecution based on that prosecution's own record, not a different record from another criminal case.

In Sparks, the defendant was charged with two felony murders. Before his case came to trial, two other persons were tried for the same murders. One was convicted of voluntary manslaughter, and the other was acquitted. Applying the doctrine of nonmutual collateral estoppel, the trial court determined that those two earlier verdicts did not allow the prosecution to try the defendant for a crime greater than voluntary manslaughter.

The Supreme Court disagreed and effectively overruled its previous decision authorizing the use of collateral estoppel in criminal cases. Nonmutual collateral estoppel provided a defendant with the benefit of a favorable verdict in a previously tried case stemming from the same facts of the defendant’s case, but involving a different person.

Continue reading "Nonmutual Collateral Estoppel Does Not Apply to Verdicts in Criminal Cases" »

Self-help guru, James Arthur Ray, has been charged with three counts of manslaughter after dozens of his followers collapsed in a sweat lodge at his retreat center in Arizona. Allegedly, over twenty people were hospitalized, and three of them never regained consciousness and died at a hospital. If he is convicted, Mr. Ray could be sentenced to more than 35 years in prison.

Since prosecutors charged Mr. Ray with manslaughter, Arizona law requires that the prosecution prove that James Ray acted with criminal intent. The prosecutors could prove criminal intent by showing that Mr. Ray acted recklessly and that his actions caused the deaths of his alleged victims. At trial, the prosecution might be able to show this by providing evidence that Mr. Ray was aware that others were ill at previous retreats. The prosecution could also show evidence that Mr. Ray lied about the incidents and ignored signs of medical distress among his followers.

Continue reading "An Arizona Self-Help Guru Has Been Charged With Manslaughter" »

In answering the question of whether discretionary procedural rulings are "automatically inadequate" to bar federal habeas corpus review, the United States Supreme Court has ruled that a state procedural rule is not automatically "inadequate" under the adequate state ground doctrine because the state rule is discretionary rather than mandatory. ﴾Beard v. Kindler ﴾Dec. 8, 2009﴿ 08-992, 2009 U.S. LEXIS 8944﴿.

Under the adequate state ground doctrine, a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Federal courts frame the adequacy inquiry by asking whether the state rule was "firmly established and regularly followed." The Third Circuit determined that since state courts had discretion to hear an appeal filed by the fugitive, meaning that courts could apply procedural rule in one case and deny its application in another, the Pennsylvania fugitive forfeiture law was not "firmly established" because it was not consistently applied in the majority of cases.

The Supreme Court granted certiorari in a case of a fugitive from justice, who had been convicted of capital murder in Pennsylvania state court and escaped to Canada at the time when the trial court was considering his post-verdict motion challenging defendant’s conviction and sentence. The trial court subsequently dismissed Kindler's post-verdict motions because of his escape. Once recaptured and brought to the United States, the defendant sought to reinstate his post-verdict motion.

Continue reading "Discretionary Procedural Rulings In Appellate Matters Are Not Automatically Inadequate For the Purposes of the Adequate State Ground Doctrine" »

If you have been charged with battery on a spouse under California Penal Code Section 243, you should immediately contact an experienced criminal defense attorney. An experienced criminal defense attorney will know how to examine all the circumstances surrounding your case to secure the most favorable result. Under Penal Code Section 243, battery is any willful and unlawful touching in a harmful or offensive manner upon a spouse, a cohabitant, or any person in which the defendant has been dating.

There are many possible defenses to the charge of battery on a spouse. Self-defense can be used as a defense if the defendant was protecting himself or herself. Also, it is not battery on a spouse if the spouse consented to the harmful or offensive touching.

If you are facing a domestic violence charge, it is critical that you talk to a California criminal defense attorney about the possible defenses. A conviction of battery on a spouse is a misdemeanor and can be punishable by up to one year in county jail and two thousand dollars ($2,000) in fines. If probation is granted, the defendant will be required to enroll in and complete a batterer’s treatment program. The conditions of probation may also include, in lieu of a fine, that the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollar ($5,000), or that the defendant reimburse the victim the reasonable costs of counseling, or both.

Continue reading "I am Accused of Battery on my Spouse - What Should I Do? - California Penal Code Section 243" »

California Penal Code Section 240 defines an assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. In other words, it is some type of action that attempts to physically injure someone.

You will often hear the defendant was charged with “assault & battery.” This means that the defendant is charged with two crimes. Assault is different from battery. Assault actually does not need to cause an injury or any physical contact. Assault is just the attempt to cause the injury. Therefore, even if no one gets hurt, you can still be charged with this crime.

For example, a person might be at a bar and he might take a swing at someone. The person dodges the punch. The person who took the swing can still be properly charged with criminal assault.

Now, picture the same scenario above, but the person actually swung a baseball bat at the person and still missed. The person will likely be charged with criminal assault with a deadly weapon under Penal Code Section 245, which can be a serious felony. This can happen even though the accused did not actually strike the alleged victim.

Continue reading "I am Accused of Criminal Assault - What should I Do? - California Penal Code 240" »

As discussed yesterday, the California Supreme Court unanimously affirmed the verdict of death after the jury in the Sacramento County convicted the defendant of the first degree murder of a deputy sheriff and of the attempted wilful, deliberate, and premeditated murder of three other peace officers stemmed from an incident of domestic violence on March 2, 1995, in Ravendale. (People v. Ervine (2009) 47 Cal.4th 745.)

Another issue addressed by the court, in addition to the right to counsel issue discussed yesterday, was evidentiary in nature. With regard to the evidentiary issues, the Court has ruled that the trial court did not err in allowing out-of-court statement by the defendant’s wife regarding defendant’s felony assault against her. At trial, as proof that the officers were engaged in the lawful performance of their duties within the meaning of the special circumstance allegation, and that the officers had probable cause to believe that defendant had committed a felony assault against his wife, the prosecution put on stand two officers who testified as to what they had been told by the dispatcher and by defendant's wife during her 911 call.

The Court has upheld the trial court’s finding that statements police officer relied upon to determine existence of probable cause to arrest an individual were admissible against hearsay objection because they were not offered for its truth but to show either officer’s state of mind or existence of special circumstances. Among other evidentiary issues, the Court has determined that the exclusion of defendant's handwritten statements made after he shot the officers was not erroneous because there was ample evidence to doubt his motives and sincerity to qualify it as a spontaneous statement exception to the hearsay rule or a statement of declarant’s then existing mental or physical state.

Continue reading "The California Supreme Court Affirmed a Death Sentence for the 1995 Murder of a Deputy Sheriff in Lassen County: Criminal Defense Issues Discussed on Appeal, Part II" »

In one of its last decisions of 2009, the California Supreme Court on automatic appeal has unanimously affirmed the verdict of death after the jury in the Sacramento County convicted the defendant of the first degree murder of a deputy sheriff and of the attempted wilful, deliberate, and premeditated murder of three other peace officers stemmed from an incident of domestic violence on March 2, 1995, in Ravendale. (People v. Ervine (2009) 47 Cal.4th 745.)

The defendant raised many issues in appeal. The Court has dismissed a claim of violation of the defendant’s right to counsel when the jail personnel had entered defendant's cell while he was in court and read all of his notes which included materials sent to the defendant by his attorney. The trial court made a factual finding that Sacramento County jail personnel had read defendant's privileged legal materials. However, because the defendant did not offer any evidence that jail personnel had communicated the confidential defense information to the prosecution, the trial court determined that defendant had failed to make out a prima facie violation of his Sixth Amendment right to counsel.

The Supreme Court has first established that not every intrusion into attorney-client privileged communication automatically establishes a prima facia violation of the Sixth Amendment. In fact, to be cognizable on appeal there must be a showing of evidence that the confidential communication was actually conveyed to the prosecution team for the defendant to claim that his right to counsel was violated.

Continue reading "The California Supreme Court Affirmed a Death Sentence for the 1995 Murder of a Deputy Sheriff in Lassen County: Jailers Unlawfully Seize Defendant's Notes of Conversations with His Attorney, Part I" »