September 29, 2007

CALIFORNIA ASSAULT CONVICTION REVERSED BECAUSE DEFENDANT MAY HAVE ACTED IN SELF DEFENSE

[No. H030005. Sixth Dist. Sep. 28, 2007.]
THE PEOPLE, Plaintiff and Respondent, v. LEONARD JOHN ROSS II, Defendant and Appellant.

Superior Court of Santa Clara County, No. FF406975, Hugh F. Mullin, III, Judge.)

Maria Antonia Speiser and defendant Leonard John Ross II engaged in a hostile verbal exchange, at the culmination of which she slapped him. Defendant responded with a blow that fractured her cheekbone.

We are called upon to consider whether the participants were engaged in "mutual combat" for purposes of the law of self-defense.

Defendant was convicted of aggravated assault and battery after the trial court instructed the jury, over defense objection, that one charged with assault cannot successfully plead self-defense if he was engaged in "mutual combat" with the alleged victim. Further, the court refused the jury's request during deliberations for a legal definition of "mutual combat," telling jurors instead to rely on the ordinary meaning of those words.

This left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense. In fact the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight.

Since the evidence here was insufficient to establish any such arrangement or agreement, and there was a substantial basis for the jury to find that defendant may have acted in self-defense when he struck the blow on which the verdict was based, we find it reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. We therefore reverse the judgment.

September 28, 2007

IS A VIOLATION OF STATE LAW ALSO A FOURTH AMENDMENT VIOLATION?

The question here is: Is a violation of state law also a Fourth Amendment violation?

The United States Supreme Court has granted cert in Virginia v. Moore (06-1082) on whether or not a violation of state law is a Fourth Amendment violation. This is an issue of first impression, and it involves tension between Knowles v. Iowa and Atwater v. City of Lago Vista (a particularly insidious and result-oriented decision in and of itself).

Under Virginia law, driving on a suspended license is a class 1 misdemeanor, and the officers should have written a citation. Instead, the arrested him, Mirandized him, and he then consented to search his hotel room. And of course they found bad stuff and Mr. Moore got indicted.

"The officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license because none of the exceptions in the Virginia Code were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore."

Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 400 (2006).

Note: Let's watch this case carefully. California has long held pursuant to proposition 8 that a violation of state statute does not implicate the Fourth Amendment, thus giving the green light to California law enforcement officers to conduct full searches and arrest individuals on minor traffic infractions with impunity.

If the justices vote correctly on this issue, we might be turning the corner toward civilization again.

September 27, 2007

NINTH CIRCUIT RULES THAT A HALFWAY HOUSE IS NOT IMPRISONMENT

U.S. v. Sullivan, No. 06-30546 (9-28-07).

The question here is: Is a halfway house considered prison, or not?

The Federal Bureau of Prisons here said "no." So have other federal agencies, and other federal circuit courts of appeal. So, why does it matter?

The defendant here, tested dirty for pot in Montana while he was in a pre-release halfway house. The question posed to the court was whether or not this restraint on freedom counted toward supervised release on his federal charge.

If it did count as imprisonment, then defendant's supervised release had expired. He could then not be returned to court on a supervised release violation. The Ninth Circuit, joining other circuits already addressing this issue, held that a halfway house is not imprisonment. Rather, a halfway house is an alternate to imprisonment.

So, what happened? Since the supervised release had started running, the petition was out of time, and the prosecution could not seek a revocation.

September 26, 2007

SAN DIEGO JUDGE SENTENCES MAN TO 11 YEARS FOR DUI HOMICIDE

By Dana Littlefield
UNION-TRIBUNE STAFF WRITER

September 26, 2007

DOWNTOWN SAN DIEGO – The news was grim last year when a Los Angeles County couple arrived at a San Diego hospital after learning that their daughter had been struck by a suspected drunken driver.

A neurosurgeon told them that Whitney Young, a student at Mesa College, had suffered massive brain injuries and that they should assume she was going to die. What the doctor couldn't tell the parents was when. “We felt like the wind had been taken out of us and our knees buckled,” Stephen Young said during a sentencing hearing yesterday in San Diego Superior Court.

Whitney Young, 19, an aspiring teacher from Palos Verdes Estates, clung to life for four days as dozens of friends and family members flocked to her bedside.

Young died Nov. 16, hours after Eric Joseph Leeman, the man accused of causing her death, was arrested in the College Area, not far from where Young was struck.

At the end of an emotional hearing, Judge Peter C. Deddeh sentenced Leeman to 11 years in prison. Leeman pleaded guilty Aug. 23 to gross vehicular manslaughter while intoxicated and admitted he fled the site of the collision.

He could have been sent to prison for up to 15 years.

Leeman, 21, originally was charged with second-degree murder, but the charge was dropped in exchange for the guilty plea. Had he been convicted of second-degree murder, Leeman could have been sent to prison for 15 years to life.

Note: This is a prime example of how politics infiltrate our system, especially in DUI cases. Six years ago I represented a woman on a 15-to-life DUI Homicide case and ultimately settled the case with the prosecutor for 5 years, 6 months. he judge concurred. One young man died, two others were crippled. There were three victims in all, and my client had prior drug convictions. However, it was a hard fought case and settled right in the middle of the sentencing range.

The sentencing Judge here, who has been reversed repeatedly by the Fourth District Court of Appeals when he has ruled against the defense on fundamental privacy and privilege matters, imposed an 11-year sentence on a very young man on a single victim case. Politics, not fundamental fairness, is the name of the game.

Continue reading "SAN DIEGO JUDGE SENTENCES MAN TO 11 YEARS FOR DUI HOMICIDE" »

September 25, 2007

LOS ANGELES POLICE OFFICER GETS PROBATION FOR ATTACKING HANDCUFFED CHILD

Los Angeles California Police Officer Sean Joseph Meade Quits, Receives Slap On The Wrist After Attacking Handcuffed Child

LOS ANGELES, CALIFORNIA - A Los Angeles police officer caught on videotape applying a chokehold to a handcuffed 16-year-old boy inside the Central Division station agreed today to resign from the department immediately in a deal that allows him to avoid time behind bars.

Sean Joseph Meade, 42, was sentenced by Superior Court Judge Rand Rubin to three years’ summary probation, 200 hours of community service and an anger management course, which the officer has already completed, district attorney’s office spokeswoman Sandi Gibbons said.

He pleaded guilty to two misdemeanor counts of fighting.

“Under this disposition he resigned from the LAPD this morning,” Gibbons said.

Meade, a 14-year veteran, had faced charges of felony assault by a public officer and filing a false police report. The December 2006 incident was caught on videotape by a hidden camera that had been installed after some chairs at the station had been vandalized.

The videotape appears to show Meade locking the teenager’s neck in a chokehold for several seconds, according to sources in the department who have viewed it.

Moments later, Meade allegedly removes the boy’s handcuffs and challenges him to a fight, say the sources, who spoke on condition that they not be named.

Police Chief William J. Bratton ordered the officer’s immediate arrest, saying the attack was “without any physical provocation” and some the LAPD would not condone or tolerate.

Mayor Antonio Villaraigosa at the time called it a “grave violation of the trust we place in law enforcement and an insult to the values of the brave men and women of the LAPD who put their lives on the line to keep us safe.”

The teenager had been arrested on suspicion of a curfew violation in Chinatown after been seen walking on a street in Chinatown with a teenage girl. LAPD officers pulled over and questioned them, authorities said.

The officers called the girl’s parents, who came to pick her up. The boy was arrested.

Meade allegedly attacked the boy in the juvenile holding room that faces out to the detective room, where the camera was positioned. The sources said the grainy video shows the alleged chokehold. Then commotion occurs off camera. The video lacks audio, so it is unclear whether a verbal altercation sparked the alleged attack.

Another officer in the area heard the disturbance and reported what he had heard to his commander. That sparked an internal affairs investigation.

Officers were unaware that the hidden camera had been set up in the detective room.


September 25, 2007

DEFENDANT MAY ADMIT EVIDENCE OF "PERSONAL" PARTITION RATIO IN DUI CASE

DRUNK DRIVING - EVIDENCE OF PARTITION RATIOPeople v. McNeal (C.A. 4th, 9/21/07, E041226) 07 C.D.O.S. 11514

Because evidence is admissible to challenge the ultimate fact of intoxication under the generic DUI statute, and personal partition ratio evidence is relevant to that fact, we hold that a defendant may introduce otherwise admissible evidence of his personal partition ratio in defense of a generic (Vehicle Code section 23152(a)) DUI charge.

But testimony about general partition ratios is irrelevant. Court erred in not allowing defendant to present evidence of personal partition ratio, but error harmless in light of strong evidence that defendant's driving was impaired.

I will be assessing the impact of this on DUI trials in future posts. I suspect upon proper analysis, this case may end up being a two-edged sword for the defense. Stay tuned.
field-sobriety-test.gif

September 24, 2007

PLAINTIFF STATES A CLAIM AGAINST POLICE WHO FAILED TO ANNOUNCE THEIR PRESENCE AND THEN BROKE DOWN DOOR WITH BATTERING RAM

The United States Distreict Court for the Northern District of California has held a plaintiff stated a cause of action against police officers by alleging they failed to announce their presence and broke the door down with a battering ram.

Plaintiff's claim for excessive force survived a federal demurrer by the police officer defendants.
Unreasonable entry is a clearly established right, at least since 1995.

Mendoza v. Whitehouse, 2007 U.S. Dist. LEXIS 73680 (N.D. Cal. September 24, 2007).*

September 24, 2007

JUDGE FINDS INMATES' RIGHTS VIOLATED BY MAKING PRISONERS SLEEP ON FLOOR

Ruling in a class-action case, a federal jurist calls L.A. County practice of having prisoners sleep on jail floors 'cruel and unusual punishment.'

By Matt Lait, Los Angeles Times Staff Writer
September 24, 2007

In a significant legal victory for thousands of former Los Angeles County jail inmates, a federal court judge has ruled that jail officials violated the prisoners' constitutional rights when they had them sleep on concrete floors because of chronic overcrowding.

U.S District Judge Dean D. Pregerson said jail officials were guilty of "deliberate indifference" when they failed to provide inmates with bunks.

"Quite simply, that a custom of leaving inmates nowhere to sleep but the floor constitutes cruel and unusual punishment is nothing short of self-evident," Pregerson concluded in a 33-page decision in a class-action lawsuit, which was released Friday.

Attorney Stephen Yagman, who represents the inmates involved in the lawsuit, said Pregerson's ruling meant that the violations of the prisoners' rights would be presented as a proven fact to a jury should the case not be settled and go to trial.

Inmates would have to prove only that they deserved to be compensated for having slept on the floor, Yagman said.

"This is quite an extraordinary ruling," Yagman said. "I've never seen anything like it." alcatraz.jpg

Continue reading "JUDGE FINDS INMATES' RIGHTS VIOLATED BY MAKING PRISONERS SLEEP ON FLOOR" »

September 23, 2007

CALIFORNIA DMV POSTS WEBPAGE FOR SENIOR DRIVERS

For those California drivers reaching theeir golden years who have questions about renewing their driver's licenses, taking driving tests, or anything else DMV related, the Caloifornia Department of Motor Vehicles has posted a webpage dedicated to the senior driver. See below.

http://www.dmv.ca.gov/about/senior/senior_top.htm

September 23, 2007

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES DIRECTOR EXPLAINS TEEN/ELDERLY DRIVING RULES

DMV director explains new teen driving rules
Contra Costa Times
Article Launched: 09/23/2007 03:03:34 AM PDT


Do you have questions about general driving-related requirements such as registration or insurance? Are you unclear about laws and restrictions related to driving? The state Department of Motor Vehicles has answers in this column by DMV Director George Valverde.

Q: What are the most current teen driving rules?

A: New laws and regulations can be confusing for teens and their parents when obtaining a driver permit or provisional license. The DMV has provided teens with an online resource for information about the driver's license process, driver safety and insurance requirements. The site includes practice tests for teens and can be found at http://www.DMV.ca.gov/teenweb.

Additionally, parents can download and review the Parent-Teen Training Guide to help their teens be better prepared for safe driving on the road. The guide can be downloaded at http://www.dmv.ca.gov/pubs/dl603/dl603.pdf.

Q: Are senior citizens required to retake a driver's road test at a certain age?

A: The DMV does not take away driver's licenses when a person reaches a certain age. The mental and/or physical condition or a person's inability to follow traffic laws and rules, regardless of age, determines whether a license is renewed, restricted, suspended or revoked. However, the DMV does require that all persons older than 70 renew their driver's license in person at a DMV office. They will be asked to take a vision test using the wall chart.
Individuals may be asked to retake a driving test if they have failed the DMV vision test or have been referred to a driver safety office because of a physical or mental condition, sometimes made by a law enforcement officer or a concerned family member.

If you or someone you know is an elderly citizen who faces the prospect of retaking a driving test, it is a great idea to practice driving skills by taking a driver education or training class specifically developed for older persons. A list of approved mature driving courses is available at http://www.dmv.ca.gov/vehindustry/ol/md_programs.htm.

To better prepare seniors to renew their license, the DMV has created a senior-specific Web site at http://www.dmv.ca.gov/about/senior/senior_top.htm.

Q: I am going to move out of state soon. What can I do to keep from getting renewal notices from the California DMV?

A: Chances are, the state where you registered your vehicle hasn't notified the California DMV that you have registered your vehicle there, or that status hasn't been updated on our records.

Send a copy of your new state's registration certificate with a note explaining when and where you moved to the California DMV, P.O. Box 942869, Sacramento, CA 94269-0001. We will mark our records and you should not receive anything further from us.

To ask DMV Director George Valverde a question, e-mail askdmv@dmv.ca.gov.

September 22, 2007

DUKE LACROSSE PROSECUTOR MIKE NIFONG REPORTS TO JAIL

Well, IT'S ABOUT TIME!

Mike Nifong, the disgraced district attorney who tried his hardest to bring bogus rape charges against three innocent Duke lacrosse players, reported for his itsy-bitsy, teeny-weeny 24-hour jail sentence today.

For goodness sakes....Paris Hilton got more time.

Nifong, who hid behind his wife while reporting to jail, was sentenced to the mini jail term for contempt of court because he lied about DNA evidence during preliminary hearings in the Duke lacrosse case. It is absolutely amazing that a man who knowingly presented false testimony and withheld exculpatory DNA evidence - who tried his hardest to put three innocent people in prison for decades - gets one day behind bars. duke.jpg


But that's just typical of how our judicial system works.

What is even more incredible is that there were Nifong supporters cheering good wishes to the their fallen hero as he turned himself in to swap his dockers for jail stripes.

One sign read, "We believe in your integrity and goodness." Was he stoned, or recently lobotomized? This prosecutor tried to ruin the lives of three innocent young men to gain notoriety and name recognition for his re-election campaign. Why? because he needed the pension!

Well, as I always say, "Darwin was wrong."

On the flip side of this sad story, it is heartening to know that the three college students who were railroaded by this unethical prosecutor are now seeking reforms of the criminal justice system as part of settlement agreements with Durham.

Of course, nothing of substance will ever happen. Protect people accused of crime. Oh, it's very unpopular.

But at least Mr. Nifong got a taste - if only a tiny taste - of what he did to those college students. I wonder, how many Nifong victims are out there that we don't know about?

September 21, 2007

COURT OF APPEAL REJECTS STUDENT'S FOURTH AMENDMENT CLAIMS OF IMPROPER SCHOOL SEARCH

In a minor's 42 U.S.C. section 1983 civil rights lawsuit alleging defendants violated her Fourth Amendment rights by conducting a warrantless search of her person during school hours and on school premises, summary judgment for defendants is affirmed as defendants did not violate her Fourth Amendment rights.

What happened?

The Safford Middle School in Safford, Arizona, has instItuted a policy of prohibiting the "non-medical use, possession, or sale of drugs on school property or at school events." Sounds fair.

In 2003, during a school dance, some teachers noticed a group of students exhibiting "unusually rowdy" behavior, and decided to investigate. The plaintiff, April Redding, was amongst them.

Staffers detected the smell of alcohol coming from the group, and later found a bottle of alcohol and a pack of cigarettes in the girls' restroom.

About five weeks later, another student - Jordan - became violent with his mother. Jordan explained that he had taken some pills that a classmate had given him. Guess what? He named plaintiff April Redding as one of the perpetrators. He also named "Marissa."

Based on this information, the vice principal collected Marissa from her class and picked up a planner that Marissa denied was hers. Oops. The planner contained knives, lighters and a cigarette. Marissa turned out her pockets at the principal's request, and out came one blue pill, several white pills and a razor blade. Marissa tattled to the principal that April Redding had provided her the blue pill. It was ultimately determined to be Ibuprofin.

Marissa was taken into the nurse's office where she was required to lift up her shirt and show her bra band, take off her pants and pull out the elastic of her underwear, and remove her shoes and socks. No more drugs or weapons were found.

April Redding was then collected, and denied Marissa's allegations. Redding complied with a search of her backpack, which yielded nothing. She also agreed to go to the nurse's office to be searched. She was required to pull her underwear out at the crotch and shake it. Redding was never touched. Her mother was not called prior to the search.

Continue reading "COURT OF APPEAL REJECTS STUDENT'S FOURTH AMENDMENT CLAIMS OF IMPROPER SCHOOL SEARCH" »

September 21, 2007

BRITTNEY SPEARS CHARGED WITH HIT AND RUN

Britney Spears was charged Friday with misdemeanor counts of hit and run and driving without a valid license after she allegedly smashed her car into another car in a parking lot in August.
She faces up to six months in jail and a $1,000 fine for each count.

Spears, 25, was filmed by paparazzi that day steering her car into another vehicle as she tried to turn into a spot in a Studio City parking lot. After assessing the damage to her own car only, she was shown on paparazzi video walking away.

September 19, 2007

CALIFORNIA HIGHWAY PATROL OFFICER RETURN TO WORK ON "BIONIC" LEGS

Injured CHP trooper returns to work on 'bionic' legs

By Don Thompson
ASSOCIATED PRESS
September 19, 2007

WEST SACRAMENTO – A California Highway Patrol officer who lost both legs in a traffic accident last year is returning to work on “bionic legs” after proving his fitness with tests such as running the 100-yard dash in 20 seconds.

“I probably still could outrun four or five guys in my office, even on these legs,” Officer Mike Remmel joked Wednesday after demonstrating his new protheses at the CHP training academy in West Sacramento.

Remmel, 47, is the first double amputee ever to be cleared for field duty after passing the CHP's 14 difficult “critical tasks” test using what officers call his “bionic legs,” said CHP spokesman Tom Marshall. Besides sprinting the length of a football field, new cadets and veterans returning from injuries must run 550 meters in two minutes, climb a steep hill, drag a weight and complete several agility tests.

Remmel spent more than a year in rehabilitation and training before passing the last test and getting his doctor's clearance Aug. 10, exactly 19 months after he lost his legs. He quietly returned to work four days later. CHP brass recruited him to give a motivational talk to cadets Wednesday and invited the media.

Remmel was completing a traffic accident investigation just after dusk Jan. 10, 2006, alongside Highway 49 in the Sierra Nevada foothills near his hometown of Sonora. A confused 80-year-old driver struck him at 45 mph, sending him flying 23 feet over a tow truck.

He lost his left leg above the knee, his right leg below the knee. Tow truck drivers used tourniquets to keep him alive until he could be flown by helicopter to a hospital.

Continue reading "CALIFORNIA HIGHWAY PATROL OFFICER RETURN TO WORK ON "BIONIC" LEGS" »

September 19, 2007

LOUISIANA ATTORNEY GENERAL SETTLES STRIP SEARCH CLASS ACTIONS CASE FOR $10 MILLION

A class action lawsuit was brought against Charles Foti, former Orleans Criminal Sheriff, alleging that during his time as New Orleans Criminal Sheriff, he subjected close to 6,500 plaintiffs to illegal strip searches.

Wow. Now, that sounds like a crime. Can we charge him with "peeping?" That's a lot of naked defendants.

The original suit was filed way back in April 2000 and just reached settlement now - seven years later - when Foti agreed to pay $10 million to resolve litigation. Foti, who was sheriff for decades before becoming Louisiana Attorney General, denied the allegations but agreed to the settlement. Sure, I always hand over $10 million when "I didn't do it." I wonder how many times Foti sneered at people who said "I didn't do it" before he strip searched them?

The money will eventually be disbursed to the 6,500 plaintiffs in the case, who claimed they were illegally stripped and cavity searched (ugh!) between April 1999 and May 2003 during Foti's administration. Under the agreement, each complainant would likely receive about $1,000 - not much for being forced to show your birthday suit to a bunch of salivating cops.

Sources stated that the class action suit forced Foti to scrap an old policy under which all those arrested had to be stripped searched. Gee, you mean, when someone steals a pair of sneakers from K-Mart, they won't be forced to take off their underpants, bend over and let a cop look up their privates anymore?

What millenium is it? It's just sad that the people of New Orleans, and not Foti, wll end up paying this judgment. I think New Orleans has better uses for its limited funds.

But, without lawsuits like this, unlawful behavior by powerful officials would only get worse.

September 18, 2007

SAN DIEGO DRUG TRAFFICKING SWEEP NETS 44 ARREST

A cross-border drug smuggling ring, which afforded its leaders expensive homes in Acapulco, has been brought down.

The San Diego Distict Attorney's office has announced the results of a six month investigation dubbed "Trapped Under ICE."

It took place throughout the Southbay, involving local and federal authorities, including Immigration and Customs Enforcement.

"We went after some major players," explained District Attorney Bonnie Dumanis. "High level traffickers who were funneling drugs into this county and then using their profits to build expensive homes in Acapulco."

"When you have an operation that can bring 30 pounds of methamphetamine across the border as well as huge amounts of heroin, also cocaine and five hundred thousand dollars taken off of them, that's no Mom and Pop operation," said Frank Marwood, the assistant special agent in charge for ICE.

In all, 44 people were arrested with the leaders of the group facing 10 to 12 years in prison.

Several pounds of drugs were seized along with $510 thousand in cash.

And those expensive homes in Acapulco allegedly bought with the drug money? Authorities say those will likely be seized by the Mexican government.

September 17, 2007

CALIFORNIA DUI PENALTIES CHART FOR CALIFORNIA MISDEMEANOR DUI CLIENTS

The following information details the minimum and maximum penalties for first, second, third, and fourth misdemeanor DUI offenses.

You should be aware that a fourth DUI may be charged as either a misdemeanor DUI, carrying up to 365 days in county jail, or as a felony, carrying up to three years in state prison.

These penalties may be substantially altered through negotiation and the assistance of a qualified California DUI lawyer.

1ST OFFENSE
Jail: Minimum = 48 hours, Maximum = 6 months
Fine: Minimum = $390.00, Maximum = $1000.00
License: Minimum = Suspended for 1 month and then Restricted License for 3 months, Maximum = Suspended for 6 months
Treatment Program: Minimum = None (although DMV will not reinstate license until a program is completed), Maximum = 6 months
Vehicle Impound: Minimum = None, Maximum = 30 days

2ND OFFENSE
Jail: Minimum = 96 hours, Maximum = 1 year
Fine: Minimum = $390.00, Maximum = $1000.00
License: Maximum = Suspended for 2 years (although a restricted license can be obtained for this time period)
Treatment Program: Minimum = None (although DMV will not reinstate license until a program is completed), Maximum = 30 months
Vehicle Impound: Minimum = None, Maximum = 30 days

3RD OFFENSE
Jail: Minimum = 120 days, Maximum = 1 year
Fine: Minimum = $390.00, Maximum = $1000.00
License: Revoked for 3 years
Treatment Program: Minimum = None (although DMV will not reinstate license until a program is completed), Maximum = 30 months

4TH OFFENSE
Jail: Minimum = 180 days, Maximum = 2-3 years
Fine: Minimum = $390.00, Maximum = $1000.00
License: Revoked for 4 years
Treatment Program: Minimum = None (although DMV will not reinstate license until a program is completed), Maximum = 30 months
Vehicle Impound: Minimum = None, Maximum = 90 days

San Diego DUI lawyer Mary Frances Prevost can assist you through both at the DUI administrative and the criminal court process to get you the bet result possible in your case. We handle San Diego DUI defense, Orange County DUI defense, Riverside DUI defense, Imperial County DUI defense, Los Angeles DUI defense, and San Bernardino DUI defense.

We also handle San Diego DUI homicide and San Diego DUI murder cases, as well as DUI homicide and DUI murder cases in all counties throughout the State of California.

September 17, 2007

DOES JUDGE OR JURY MAKE THE FINDING THAT A PRIOR CONVICTION IS A STRIKE IN CALIFORNIA?

DOES A JURY HAVE TO FIND THAT A PRIOR QUALIFIES AS A STRIKE?

The trial court reviewed the defendant's strike prior from Illinois, and found that it qualified as a serious felony and thus a strike. The defense argues that under Apprendi (530 U.S. 466) and Cunningham (127 S.Ct. 856), the determination of whether a prior qualifies as a strike is one that must be made by a jury, not the judge.

The California Third DIstrict Court of Appeal claims that there's an exception to Apprendi and Cunningham for priors, and that exception is broad enough to apply here.

People v. Jefferson; 2007 DJ DAR 14027; DJ, 9/11/07; C/A 3rd

September 17, 2007

CALIFORNIA COURT RULES THAT JUDGE CAN CONSIDERED DISMISSED COUNTS AT SENTENCING IF THE DEFENDANTS GIVES A HARVEY WAIVER

HARVEY WAIVERS AND CUNNINGHAM

In the case of People v. Harvey (25 C3d 754) the California Supreme Court held that a court may not consider dismissed counts as circumstances in aggravation to impose upper term. This resulted in Harvey waivers, where we agree that even though counts are being dismissed, the court may still consider them at sentencing. It's part of the deal-making process.

The in this case gave a Harvey waiver here. The judge then relied on facts in
the dismissed counts to impose the upper term. The defense challenges this on Cunningham (127 S.Ct. 856) grounds arguing that since no jury ever found the facts to be true n the dismissed counts, the court couldn't use them to impose the upper term.

It is well held that a court may rely on facts not found by the jury if the defendant admitted those facts. You guessed it, this court of appeal finds that giving a Harvey waiver is the same as agreeing to the facts in the dismissed counts. Therefore, those facts may properly be relied on at sentencing.

Practice Pointer: If the DA doesn't demand a Harvey waiver at the time of plea negotiations, put the deal in writing and fax it to the DA. When they scream "foul" at the time the plea is taken, and they try to back out, demand specific enforcement of the contract.

People v. Munoz; 2007 DJ DAR 14335; DJ, 9/17/07; C/A 3rd

September 16, 2007

O.J. SIMPSON ARRESTED IN LAS VEGAS FOR ROBBERY

LAS VEGAS, Nevada (CNN) -- O.J. Simpson will be charged with a total of six counts of robbery, assault, burglary and conspiracy, Las Vegas police announced Sunday.

O.J. Simpson was arrested Sunday in relation to an armed robbery investigation.

Simpson was arrested at his hotel room at the Palms Casino Resort in Las Vegas, where he was staying while attending a friend's wedding, Las Vegas Metropolitan Police Capt. James Dillon told reporters.

He was expected to be booked Sunday evening on two counts of robbery with a deadly weapon, two counts of assault with a deadly weapon and one count each of armed burglary and conspiracy to commit burglary, Dillon said.

Simpson requested an attorney and was still at police headquarters late Sunday afternoon, Dillon said.

A co-defendant, Walter Alexander, faces similar charges in an investigation Dillon called "still dynamic and still ongoing."

Alexander, a Nevada resident, was arrested on his way to McCarran International Airport, a source told CNN. Watch a report on the latest developments in the probe »

"I don't know why they arrested him," Simpson told CNN on Sunday before his own arrest. "I've stayed in contact with the police, and the truth will come out."

Simpson, 60, is accused of taking sports memorabilia from two men in a Las Vegas hotel room Thursday. One of the men, Bruce Fromong, described the incident as "a home invasion-type robbery."

Simpson has said the items belonged to him.

Continue reading "O.J. SIMPSON ARRESTED IN LAS VEGAS FOR ROBBERY" »

September 15, 2007

SAN DIEGO CONVICT IN RANDY "DUKE" CUNNINGHAM CASE MAY GO BACK TO JAIL

Reprinted from the San Diego Union Tribune

By Greg Moran
STAFF WRITER

September 15, 2007

DOWNTOWN SAN DIEGO – A New York financier who admitted a role in the Randy “Duke” Cunningham scandal has been ordered into court Monday to explain why he shouldn't be thrown in jail for vacationing in Greece while out on bond.

Judge Larry A. Burns issued the order Thursday for Thomas Kontogiannis, a key figure in the bribery case of former Congressman Cunningham.

Kontogiannis pleaded guilty to a single count of money laundering and is believed to be cooperating with the government on other investigations. His guilty plea was done in secret in February and not publicized until June. He faces a maximum of 10 years in prison, but no sentencing date has been set.

According to the terms of his release on bond, Kontogiannis was supposed to surrender his passport and would be allowed to travel only with federal agents or with their approval.

The order says that Burns learned from “reliable sources” that Kontogiannis had traveled outside the United States, violating the conditions of release and the travel restrictions placed on him when he posted $1.5 million bond in February.

In a hearing last month, a lawyer for Kontogiannis' nephew, who is to go on trial in two weeks, told Burns that he had learned Kontogiannis was on a trip with his family in Greece.

Continue reading "SAN DIEGO CONVICT IN RANDY "DUKE" CUNNINGHAM CASE MAY GO BACK TO JAIL" »

September 15, 2007

O.J. Simpson Suspected in Las Vegas Robbery

Reprinted from the Associated Press

By Kathleen Hennessey
ASSOCIATED PRESS

September 15, 2007

LAS VEGAS – O.J. Simpson was under investigation yesterday in an alleged break-in and armed robbery at a casino hotel room that netted sports memorabilia. But the former football star said he went there to recover items stolen from him and that there were no weapons involved.

“Nobody was roughed up,” Simpson said in a phone interview. “What I can't understand is these guys are in a room trying to fence stolen goods and I'm the story.”

The incident at the Palace Station casino once again hurled Simpson into the headlines more than a decade after he was acquitted of killing ex-wife Nicole Brown Simpson and her friend Ron Goldman in the “Trial of the Century,” only to be found civilly liable for their deaths and ordered to pay a $33.5 million judgment.

While police were mum on details yesterday, the case quickly became a “he said, he said” as Simpson and other men who claimed to be in the hotel room aired conflicting accounts in a city that's supposed to keep its secrets.

“We didn't break into any room. There was no armed robbery,” Simpson told The Associated Press in a telephone interview from Las Vegas.

Las Vegas Metro Police Capt. James Dillon said officers responded to a call from the hotel just before 8 p.m. Thursday. The confrontation was reported as an armed robbery involving guns, but he said no weapons had been recovered and that the investigation was in its infancy.

Las Vegas Metro Police Capt. James Dillon said yesterday that no charges had been filed in the Las Vegas incident and that no one was in custody.

“The victim stated that one of the suspects involved in the robbery was O.J. Simpson,” Dillon said.

Continue reading "O.J. Simpson Suspected in Las Vegas Robbery" »

September 14, 2007

COURT CANNOT SENTENCE DEFENDANTS CONCURRENTLY FOR CRIMES ARISING OUT OF THE SAME COURSE OF CONDUCT

MULTIPLE CRIMES, ONE COURSE OF CONDUCT

The defendant broke into a car. The victim returned and yelled at the defendant. The defendant got out of the victim's car brandishing an ice pick, and then ran off with the victim's car stereo.

The defendant was convicted of burglary and robbery, and was sentenced on both counts concurrently.

Wrong answer. California Penal Code sec. 654 bars sentences on crimes committed pursuant to a single course of conduct. (Latimer, 5 C4th 1203.) The trial judge here focused on the burglary being complete at the moment of entry into the car, but that's not the point. The right point is that both crimes were pursuant to the single objective of stealing the car radio.

The correct resolution is to stay the sentence on count two.

People v. Perry; 2007 DJ DAR 14191; DJ, 9/13/07; C/A 2nd, Div. 8

September 13, 2007

NICOLE BROWN SIMPSON HEARSAY EXCEPTION - INAPPLICABLE

NICOLE BROWN SIMPSON HEARSAY EXCEPTION

The Nicole Brown Simpson hearsay exception, codified in California Evidence Code sec. 1370, makes hearsay statements of infliction or threat of harm admissible under specificed circumstances.

The California Court of Appeal finds that the statement at issue here doesn't qualify as admissible under sec. 1370. Section 1370 requires that the statement be made "at or near" the time of the incident. The California Court of Appeal finds the statement here, made almost two months after the alleged incident, wasn't "at or near," the time of the incident.

In making the decision, the California Court of Appeal emphasized that the victim denied any injury during those two months. They also find that the statement fails to qualify as trustworthy, since there was no showing that the statement was accurate.

A concurring opinion says that sec. 1370 should just be struck down as a violation of the confrontation clause, under Crawford (541 U.S. 36). I agree.

People v. Quitiquit; 2007 DJ DAR 14194; DJ, 9/13/07; C/A 4th

September 13, 2007

SEXUAL ABUSE CONVICTIONS REVERSED FOR JUROR MISCONDUCT

Ineffective legal work, juror misconduct cited

By Greg Moran
and Mark Sauer
UNION-TRIBUNE STAFF WRITERS

September 13, 2007

A state appeals court reversed yesterday the 2004 child molestation convictions of a popular Toler Elementary School teacher who is serving a prison sentence of 15 years to life after three separate trials.

Thad Jesperson

The 2-1 decision by a panel of the 4th District Court of Appeal in San Diego was the latest turn in the emotionally charged case of Thad Jesperson, or “Mr. J” as he was known to many at the Clairemont school, which is in the San Diego Unified School District.

Jesperson was put on trial three times by San Diego prosecutors on charges relating to the alleged molestation of eight second-and third-grade students in the 2001-02 and 2002-03 school years.

His convictions involved four of those girls. Charges relating to the other four children were either dropped by prosecutors or ended in acquittals or jury deadlocks.

In an 80-page ruling, Justice Richard Huffman wrote that the verdict had to be thrown out because of a combination of misconduct by jurors and ineffective legal work by Jesperson's lawyer. The defense lawyer did not prevent jurors from hearing videotaped interviews of the children that Huffman said were filled with prejudicial and irrelevant comments.

In the face of the allegations, Jesperson always insisted he was innocent. Yesterday his wife of 20 years was elated.

“I have just been inundated with phone calls from so many wonderful people calling in support,” Sydney Jesperson said from her home in Murrieta. “Our family was so excited by this news.”

“We completely believe in his innocence, as we always have,” she said. “We are finally feeling justice is starting to be served and we continue to be hopeful.”

Continue reading "SEXUAL ABUSE CONVICTIONS REVERSED FOR JUROR MISCONDUCT" »

September 11, 2007

CALIFORNIA JURY MUST DECIDE IF AN OUT-OF-STATE PRIOR CONVICTION IS A "STRIKE"

DOES A JURY HAVE TO FIND THAT A PRIOR QUALIFIES AS A STRIKE?

In this case the trial court reviewed the defendant's strike prior from Illinois, and found that it qualified as a serious felony and thus a strike. The defense argues that under Apprendi (530 U.S. 466) and Cunningham (127 S.Ct. 856), the determination of whether a prior qualifies as a strike is one that must be made by a jury, not the judge.

The California Court of Appeal claims that there's an exception to Apprendi and Cunningham for priors, and that exception is broad enough to apply to these facts.

People v. Jefferson; 2007 DJ DAR 14027; DJ, 9/11/07; C/A 3rd

September 10, 2007

SAN DIEGO JUDGE COMMITS MISCONDUCT BY TALKING TO JURORS DURING DELIBERATIONS - CASE REVERSED

CONVERSATIONS BETWEEN THE JURORS AND THE JUDGE - STRICTLY PROHIBITED!

In one of the strangest cases ever in San Diego County, San Diego Superior Court Judge John Thompson was severly admonished and a felony case reversed based on the judge's improper contacts with jurors during deliberations. What is even more bizaare is that after the defense attorneys somehow found out about this serious misconduct, the judge just couldn't seem to remember what he told the jurors.

Let's set the scene. The jurors in a felony case were hung. They just couldn't decide what to do. What normally occurs is that the trial judge calls the defense attorney and the prosecutor back into the court, and then calls the jury in to inquire if additional deliberations would help.

Not in this case. The trial judge decided to take matters into his own hands and just bypass the defense attorney and the prosecutor. Who needs 'em. Forget the defendant, while we're at it. The jury said they were hung and they had questions. So the judge offered to go and talk to the jury, and to give them examples of malice, without counsel or the reporter present. And the judge did. Six times.

Lo and behold, the jury came back guilty. When everyone tried to reconstruct what the judge had told the jury - all six times, over and over and over again - well, the judge wasn't too clear on all that. Isn't it amazing how one's memory fails when one is caught with one's pants down? Amazing how that happens.

The California Court of Appeal is astounded and amazed. The California Court of Appeal is upset. Excuse me, judge, but didn't you know that this is interfering with the deliberative process of the jury? The Califoria Court of Appeals reverses the conviction since the inability to reconstruct precisely what the judge said precludes meaningful appellate review.

Practice Pointer: Don't let the judge chat up your jury in your absence, OK?

People v. Bradford; 2007 DJ DAR 13969; DJ, 9/10/07; C/A 4th

September 8, 2007

SAN DIEGO SHERIFF'S DEPUTIES SHOOT AT SAN DIEGO DUI SUSPECT AT DUI ROADBLOCK

San Diego DUI suspect gets shot at by San Diego Sheriff's Deputies.

San Diego Sheriff's deputies at a DUI checkpoint in Lemon Grove on September 7, 2007 shot multiple times to stop a suspected San Diego drunk driver.

The San Diego Sheriff's Department set up the checkpoint on Broadway near Massachusetts Avenue in Lemon Grove at 8 p.m., and in the course of the night jailed seven people, according to Sgt. Peggy Frailey.

Officers claimed to see a silver Ford Focus make a U-turn ``in what appeared to be an effort to avoid the checkpoint,'' said Sgt. Chuck Browning of the San Diego Sheriff's Department.

Three deputies walked up to the car, and one asked the driver to get out, said Browning. The driver put the car into drive and drove towards two of the deputies, said Browning.

Allegedly fearing for their safety, the Sheriff's deputies opened fire the vehicle, striking it several times before they jumped out of the way, said Browning. (One may wonder, "Why would they need to ump out of the way of the car that they had already stopped and engaged?)

The car sped off and officers chased it, Browning said. The driver, 42-year old Mark Wieter, made it to the city of San Diego before the chase ended with help from the San Diego Police Department and their helicopter at the intersection of Euclid Avenue and Hilltop Drive, he said.

Weiter was not hit by any of the officer's bullets, and was taken to the Lemon Grove Sheriff's station to be booked for assault on a peace officer, among other charges, Browning said.

September 6, 2007

CALIFORNIA HIGHWAY PATROL TO OFFICERS WITH TASERS

The California Highway Patrol (CHP), the largest U.S. law enforcement agency in the country, has ordered 1,659 Taser X26 Electronic Control Devices.

CHP is the largest state police agency in the country with approximately 7,300 sworn officers. The CHP states that it's core mission is to provide the highest level of safety, service, and security to the people of California. Apparently, this includes having what are primarily traffic cops patrol the highways packing weapons that release excrutiating bolts of electricity into the bodies of the subjects suspected of speeding for driving under the influence of alcohol.

September 5, 2007

ADULT COURT BANNED FROM USING JUVENILE SEX CRIME PRIORS

COURTS CAN'T USE JUVI RECORDS IN A SEXUALLY VIOLENT PREDATOR PROCEEDING

When James H. was a juvenile, he had a juvenile court wardship finding that he violated California Penal Code section 288(a). His juvenile record was sealed under California Welfare & INstitutions Code section 781. James H. then got convicted of new sex crime in adult court.

When it was time for his release from custody on the new adult conviction, they claimed he was a sexually violent predator (SVP). The Board of Parole Hearings wanted to conduct
a review to determine whether he was an SVP, so they sent a letter to the juvenile court asking for the the juvenile court records.

The juvenile court sent them right along. The California Court Appeals holds that the juvenile court's sealing order bars release of these records for use in an SVP proceeding.

In re James H.; 2007 DJ DAR 13575; DJ, 9/5/07; C/A 1st

September 4, 2007

SAN DIEGO FEDERAL COURT JUDGE REVERSED ON ALIEN SMUGGLING ENHANCEMENT

The Ninth Circuit United States Court of Appeals has reversed United States District Court Judge Barry Ted Moskowitz's imposition of a +6 upward departure for dangerousness in an alien smuggling case where the smuggled person was concealed "in a carved out compartment located beneath the rear passenger seat of an extended cab pick-up."

The majority arguably eliminates using the enhancement based only on the increased danger for injury in the unlikely event of an accident. The case distinguishes those circumstances from the examples listed in the notes to the guidelines:

What is notable about these examples -- "transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle" -- is that in each, unlike here, the means of travel either exacerbates the likelihood of an accident, subjects the passenger to a risk of injury even during an accident-free ride, or both.

Assuming this case is interpreted to eliminate the enhancement in such circumstances, and evades en banc review, this will be significant for a lot of our clients.

US v. Torres-Flores, Download file
2007 U.S. App. LEXIS 21068.

Practice Pointer: San Diego federal criminal defense practitioners report that federal prosecutors are stating that your facts fit the Torres-Flores facts, they will make an offer without the plus six. That basically means they will not try to thwart the 9th Circuit's decision.

However, federal practitioners should try to apply the holding, and theory behind the holding, of Torres-Flores to other alien smuggling cases where the manner of stowing the aliens would not necessarily increase the danger for injury in the unlikely event of an accident.