Southern California Defense Blog

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" »

It was recently reported that a 62-year old woman died as a result of her injuries in a hit and run accident in Los Angeles. The woman, whose name has not yet been released, was hit while she was crossing a street near Normandie Avenue and West Adams Boulevard. The man believed to have hit the woman was driving a black Toyota Camry. Police are trying to locate the driver, who will be facing hit and run charges.

In the state of California, the driver in the above situation will be facing felony hit and run and possibly homicide charges. Potential penalties can include prison time, hefty fines, and loss of driving privileges for the rest of his life.

Continue reading "How Hiring An Experienced San Diego Criminal Defense Attorney Can Help You If You Are Arrested for a Hit and Run - CVC 20001 - CVC 20002" »

Recently it was reported that two men were shot in a North Hollywood synagogue parking lot by an unknown assailant. Immediately after the shooting, there was great concern that these shootings were the result of a “hate crime” or possibly an act of terrorism. The Los Angeles Police Department’s counter Terrorism and Criminal Intelligence Bureau has stated, however, that there is no reason to believe that the shootings were in fact hate crimes or terror related. For this reason, the anti-terror squad will not be conducting the investigation.

The identity of the shooter remains unknown, although his image was captured by a surveillance camera. Detectives are now looking into the possibility that the shooting was related to a business or personal dispute. Los Angeles Mayor, Antonio Villaraigosa, who also arrived at the shooting site, stated that the shooting was only a random act of violence and cautioned against further speculation regarding the incident.

Continue reading "The Los Angeles Police Department Maintains that Synagogue Shooting Not a Hate Crime" »

On December 29, 2009, CNN reported that Charlie Sheen’s Wife, Brooke Mueller, has accused Mr. Sheen of threatening to have her killed. CNN reports that Mueller alleges Sheen said, "I have ex-police I can hire who know how to get the job done, and they won't leave any trace," as he held her down with a knife.

Sheen was arrested on Christmas Day and is being charged with assault, menacing with a deadly weapon and criminal mischief. He posted $8,500 bond and was released.

To be convicted of assault under California Penal Code section 240, the prosecuting agency must prove (1) that you "willfully" acted in a way that would likely result in physical contact with another, (2) that you were aware that your "act" would likely result in that physical contact, and (3) that when you "willfully acted" you had the ability to follow through with the act that would cause that contact. It is important to note that "physical contact" means any touch, no matter how slight, if the touch is done in an angry, harmful or even offensive manner.

Continue reading "Charlie Sheen is Accused of Assault: What this Means and How an Experienced Criminal Defense Attorney Can Help Him Avoid Jail" »

As a result of Operation Community Shield, law enforcement has arrested 1,785 gang members and associates around the country between March and September of this year. Of those arrested, approximately 300 were from the Los Angeles area. Gangs that were targeted in Los Angeles County during the sweep included the Avenues, 18th Street, Barrio Evil 13 and Mara Salvatrucha gangs. Charges against these alleged members ranged from drug dealing, drug trafficking and reentry after deportation to murder.

Virginia Kice, from Immigration and Customs Enforcement, stated that the majority of charges of those arrested in Los Angeles County were criminal while the rest were for immigration violations. The goal of Operation Community Shield is to disrupt a gang’s organization in Los Angeles County and throughout the nation by taking out its members with both criminal arrests and prosecution for immigration violations.

Continue reading "Gang Crackdown in LA" »

The language in recent case decisions indicates that courts recognize the danger inherent in domestic violence situations. The volatility of situations involving domestic violence make them particularly well suited for an application of the emergency circumstances doctrine, where law enforcement can enter your home without a warrant given that an emergency is taking place.

When officers respond to a 911 domestic abuse call, a judgment call may be required when making a determination of whether law enforcement is permitted to enter a residence. There is language in a recent court case suggesting the need for courts to respect the judgment of officers who feel they must enter a residence in a domestic violence situation.

Continue reading "What You Need to Know if You Are Facing a Domestic Violence Charge" »

Last month, several LAPD officers teamed up with other Federal agents in a highly coordinated team-effort and arrested 78 suspected members of the notorious “Avenues” street gang. The gang, based out of the north-eastern part of Los Angeles, has been tied to extensive drug trafficking as well as several murders over the past year, including the assassination of a Los Angeles County Sheriff’s deputy.

Nearly 1,200 officers and agents teamed-up for the arrests. Police officials claimed that it was the biggest gang sweep in Los Angeles County in several years. They assert that the arrests have dealt a major blow to the gang and its illegal activities, however also realize that there is still much more to be done in order to combat this gang, of which claims more than 400 members.

Continue reading "LAPD and Federal Agents Arrest 78 People in Major Gang Crack-Down" »

In the context of an officer's warrantless entry into your residence, the most important issue is objective reasonableness. Whether, under the circumstances of your case, the officer's warrantless entry into your residence was objectively reasonable. If so, the "exigent circumstances" expection to the general warrant requirement may apply to justify the entry.

A common issue in domestic violence cases is whether the officer responding to the scene should have secured a warrant before entering the residence. The police and prosecution will argue that any delay to obtain a warrant would have posed a safety risk to the alleged victim. On the other hand, defense counsel may have facts which go to show that abandoning the scene to obtain a warrant was unlikely to expose the alleged victim to further harm.

Continue reading "Domestic Violence - Exigent Circumstances May Justify An Officer's Warrantless Entry Into Your Residence (Part 2) " »

Several cases have involved situations wherein officers go to a residence in response to a report of domestic violence being committed. Generally, if an obviously battered victim is present and the batterer is still within the residence, the officer may enter the residence to arrest the batterer. This was expressed in the case of People v. Frye (1998) 18 Cal.4th 894.

The issue is whether, in light of the facts known to the officer at the time, the officer could have reasonably concluded that immediate action was necessary. An attorney may be able to argue that had the officer left the scene to obtain a warrant, there was not a significant risk of additional harm. Such an argument is fact-intensive and requires review and analysis by an experienced California domestic violence defense attorney.

Continue reading "Domestic Violence - Officer's Presence At One's Residence (Part 1)" »

The Ninth Circuit Court of Appeals recently overturned a defendant’s death penalty finding that his lawyer did not provide effective assistance of counsel.

In 1982, in an Arizona state court, Laurence Libberton was convicted of the murder of Juan Maya. The key witness at the trial, Martin Norton, a juvenile also charged in connection with the crime, testified that the Libberton shot Maya. During the penalty phase of the trial, Libberton’s counsel only called two witnesses, and Libberton was subsequently sentenced to death for the murder.

On appeal, Libberton presented evidence that was unavailable to him at trial. The appeals court initially ruled that the additional evidence could not be admitted because it was not part of the record at trial. The Ninth Circuit reversed, finding that the evidence was available at trial, but Libberton’s lawyer did not present it and was therefore ineffective. Here, Libberton’s counsel failed to present evidence that could have established that Norton was emotionally unstable and an unreliable witness. The failure to present this evidence—or even to seek it—was unjustified and highly prejudicial. The Ninth Circuit Court of Appeals overturned Libberton’s death sentence and gave the state reasonable time to resentence.

Continue reading "Death Penalty Conviction Overturned Due to an Attorney's Ineffective Assistance of Counsel " »

A recent California Supreme Court opinion held half of a defendant’s statement to be inadmissible because it was coerced by the police. However, the first part of the statement was still enough for the jury to convict the defendant of a double murder.

The California Supreme Court was not happy with the police tactics used to illicit the confession and wrote extensively about the improper procedure. The court ruled, in part, that the police may not illicit a confession through a direct or implied promise. In this case, the promise was to exclude the defendant’s wife from further investigation in exchange for a confession to the murders.

In all criminal cases, a statement is involuntary if it is not the product of a rational intellect and free will. The test for determining whether a confession is voluntary is whether the defendant’s will was overborne at the time he confessed. In other words, were the influences brought to bear upon the accused enough to overbear the defendant’s will to resist, and bring about confessions not freely self-determined. In determining whether or not an accused’s will was overborne, an examination must be made of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.

Continue reading "Appealing a Confession: What Counts as Voluntary?" »

The United States Constitution gives defendants the right to cross-examine witnesses against them in criminal proceedings. A defendant in California appealed his conviction of murder on the grounds that he was unable effectively to cross-examine the prosecution’s key witness.

The mother of the victim in this case was the prosecution’s key witness. The victim’s mother, is deaf, cannot speak, and has never learned a standard sign language. Rather, she communicates by using a combination of signs, gestures, facial expressions, and lip reading. At trial, the court used two interpreters to elicit her testimony. The criminal defense attorney for the defendant objected a number of times throughout her testimony, claiming, among other things, he could not determine whether she understood the questions being asked of her.

Continue reading "Court Rules that Defendant Was Not Denied Right to Cross Examine a Witness that Was Deaf, Could Not Speak, and Never Learned Sign Language" »

The founder of Numero Uno markets, a chain of grocery stores throughout Southern California, was granted a new trial last week. This came after a Federal Judge in Los Angels threw out guilty verdicts that had previously been imposed against him.

In throwing out 50 guilty verdicts against the grocery store founder, the Judge ruled that new evidence came to light that may have exonerated him. Prosecutors allege that the man ordered the murders of rivals, employed undocumented workers, and bribed public officials. They will retry him and still maintain that the man is guilty of these crimes.

What is critical to remember is that the only reason that this man is receiving a new trial is that a highly experienced CA criminal appeals lawyer was able to file the appropriate legal briefs and convince the federal court that his client’s legal rights were violated. At a new trial, the defendant may be found not guilty and be a free man.

Continue reading "Grocery Store Owner in Los Angles County to Get a New Trial in Light of New Evidence" »

Oxnard Juvenile Court building was shut down one morning in late October, after a reported shooting in the lobby. The entire facility was locked down and court proceedings were delayed while police searched for the gun man.

According to police, the suspect was a man wearing a Chargers football jersey and slicked back hair. After closing the building for most of the morning and into the afternoon, the detectives determined that there was no shooting.

It seems that a glass window at the front of the building spontaneously shattered and caused a good amount of commotion.

Funny things happen in criminal law and we remind everyone, that it’s important to wait for all facts to come out before rushing to judgment. Our society is quick to judge and quick to believe accusations even if such accusations are completely unfounded.

Continue reading "Shooting at Oxnard Juvenile Court was a False Alarm" »

In some situations, being convicted of assault with a deadly weapon may result in serious penalties. Most people are generally aware of the potential consequences associated with a conviction for assault with a deadly weapon. A person convicted of assault with a deadly weapon may be unfortunate enough to get a lifetime suspension of driving privileges by the Department of Motor Vehicles.

Under California law, the Department of Motor Vehicles must suspend for life the driving privilege of a person convicted of assault with a deadly weapon when a vehicle is used as the deadly weapon or instrument in that offense. The new law holds that a felony conviction will result in a lifetime revocation of the driving privileges of the person convicted.

Continue reading "A Person Who is Charged with Assault with a Deadly Weapon May Be Surprised When their Driving Privilege is Suspended for Life" »