California Criminal Lawyer Blog

The co-defendant testified at the suppression motion (Penal Code sec. 1538.5), to facts which would have made the police search illegal.

But the co-defendant refused to answer some things on cross examination.

The Court of Appeal says that striking the co-defendant's testimony was the correct sanction here.

Funny how they don't want to do that when the DA's witness (usually the cop) refuses to answer our questions in cross.

People v. Seminoff; 2008 DJ DAR 1613; DJ, 1/31/08; C/A 4th

Continue reading "CALIFORNIA CRIMINAL LAWYER NEWS: REFUSING TO ANSWER QUESTIONS DURING CROSS EXAMINATION" »

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Posted In: California Cases , Evidence

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This case could conceivably become one of the most widely read cases in California. It's crazy. It's juicy. It's XXX-Rated. It's really, really weird.

The Court of Appeal begins by saying, "This is not your garden variety kidnapping and rape case." No kidding.

The victim, Jane Doe, started getting threatening letters, saying the writer of the letters would "fuck up" the victim's family if she didn't comply. With what? With engaging in a truly staggering array of sexual acts with Michael, a co-worker.

Michael claimed he was getting similar letters. Michael told Jane that Tiffany, another coworker, was writing these letters, that Tiffany was psycho, and that they had to comply to avoid having Jane's family being hurt.

Over a seven-month period, and that's not a typo, Jane submitted to a variety of sexual acts with Michael, many of them videotaped (so Tiffany could be sure that Jane was complying,
see?).

The footnotes quoting the letters are beyond X-rated; the funniest part is where the letters say that Jane should make the sex more romantic.

Finally Michael went on vacation, Jane went to the police, and the police immediately realized that Michael was sending the letters. He of course copped out.

The issue is whether there's enough evidence for kidnapping for rape. Yep, the court says there was sufficient movement, since Michael took Jane to the parking lot of a nearby cemetery to engage in many of the sexual acts.

A cemetery parking lot? This guy really was romantic.

People v. Power; 2008 DJ DAR 1036; DJ, 1/23/08; C/A 4th

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: THE MOST BIZAARE KIDNAPPING FOR RAPE CASE - EVER" »

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Posted In: California Cases , Evidence

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Family Says Pacific Law Center Took Fees and Didn't Do Work

Defense faults previous lawyers
By Greg Moran
UNION-TRIBUNE STAFF WRITER

January 29, 2008

A judge declined to lower the bail yesterday for Seth Cravens, one of five La Jolla residents charged in the death of surfer Emery Kaunaui Jr. in May.

Cravens, 21, is accused of throwing the punch that killed Kaunaui and is the only one of the five defendants still in jail. His bail is set at $1.5 million.

His new lawyer, Deputy Alternate Public Defender Mary Ellen Attridge, said Cravens' bail should be lowered to a level his family could afford. Attridge said the family paid Pacific Law Center, which employs his previous lawyers, $175,000 to represent him, but Attridge said in court that the firm had done little work that was “usable.”

She said the money the family used to pay for the law firm could have been used toward bail. Her office was appointed to represent Cravens this month after the family fired Pacific Law Center.

The firm has been subject of complaints from lawyers and former clients, most alleging it has huge caseloads, charges large fees and gives poor service.

Superior Court Judge John Einhorn said Cravens' problems with previous lawyers are not the basis for a bail reduction. Bail was reduced once already, Einhorn said.

After the hearing, Robert Arentz, the supervising attorney for Pacific Law Center, defended the firm's work in an e-mail. Arentz said the firm spent more than 1,000 hours on the case, hired experts and met numerous times with the family.

“The work we performed exceeded the amount we were paid to handle the case,” he said.

COMMENT: Bail is to be set at an amount that secures the person will return to court, not at an amount so high that it ensures they will not be able to get out. Let's note that judge here, John Einhorn, was the judge who tried to suppress evidence to help his friend, Peter Longanbach, escape prosecution. Click HERE for link.

And even more recently than the Longanbach debacle, Einhorn was reversed by the Court of Appeal just a few months ago when he failed to protect a defendant's rights. Click Here for link.

And now he is set to sit as trial judge during the re-trial of Cynthia Sommer, whose case was reversed because of ineffective assistance of counsel. Click HERE for link. Ms. Sommer's lawyer was accused of failing to protect his client. However, responibility rests equally with the trial judge, Pete Deddeh, who has one of the highest reversal rates in the California Court of Appeals. Now Sommer will have to deal with another regularly reversed, prosecution oriented jurist.

Oh, I forgot, this started out as a blast to San Diego's mill firm, Pacific Law Center. Click HERE for the San Diego Trinune article outlining the many complaints against the "firm."

Continue reading "PACIFIC LAW CENTER TOOK MONEY AND DID LITTLE WORK, FAMILY SAYS" »

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Why did the overworked California Supreme Court grant review on this case? it's because they just couldn't ber that the Court of APpeal reversed a convcition for Prosecutorial Misconduct. So, they granted review to protect the prosecutor.

So, here's what happened. The Cort of Appeal reversed the defendant's convcition because of prosecutorial misconduct.

The California Supreme Court granted review and reversed the Court of Appeal, meaning they affirm the conviction. They restate well-settled appellate rules governing prosecutorial misconduct.

But what important issues did this case present that they wanted to resolve? Which important issues did they in fact resolve? None. The Supremes find that the DA didn't improperly urge
the jury to convict through a guilt by association argument (the defendant is a Catholic priest, convicted of child molestation).

The Supremes find that the DA didn't ask the jurors to stand in the shoes of the victims. They do have to admit that the DA said, "I think his client is guilty." This violates the ban against expressions by the prosecutor of belief in the defendant's guilt. But the Supremes assure us that in context this referred to the evidence presented, not some evidence the DA had that
the jury didn't.

Of course, this is still misconduct, isn't it? Yes. But we must send the message to the prosecutors that the ends DO justify the means; that you CAN commit miscondcut if the case warrant it. Right?

Of course, the Supremes say that any error was waived, and the failure to object wasn't
ineffective, since there might have been valid tactical reasons not to do so.

Remind me again, why did they bother with this case? Oh right, they are so overwhelmed with work that they want to dump death cases on the Court of Appeal.

People v. Lopez; 2008 DJ DAR 1393; DJ, 1/29/08; Cal. Supremes

Continue reading "PROSECUTORIAL MISCONDUCT, OR NO PROSECUTORIAL MISCONDUCT?" »

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Posted In: California Cases , Prosecutorial Misconduct

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The California Fourth District Court of Appeal holds in this bizaare case that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion.

The defense counsel invoked the Fifth Amendment on cross examination, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense.

People v. Seminoff, 2008 Cal. App. LEXIS 144 (4th Dist. January 29, 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor's questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Basset was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court's previous rulings, she was willing to answer questions about whether she intended to sell the marijuana.

However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.”

The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor's questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant's testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

But it won't. It should, at least, be depublished.

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?" »

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Posted In: California , California Cases , Evidence , Judicial Misconduct Cases , Search & Seizure Cases

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Police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. section 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm.

Bingue v Prunchak, (U.S. 9th Cir., Jan. 15, 2008)

Continue reading "CALIFORNIA CIVIL RIGHTS NEWS" »

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Posted In: Civil Rights , Federal Cases

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The California Supreme Court has ruled 5-2 in Ross v. Ragingwire Telecommunications that employers may fire workers for using medical marijuana.

Ross gave Ragingwire a copy of a note from his physician recommending that he use marijuana to help alleviate chronic back pain. On September 25, 2001, Ragingwire terminated Ross because of his marijuana use.

Ross filed a lawsuit claiming that the termination violated the California Fair Employment and Housing Act ("FEHA"). More specifically, Ross alleged that Ragingwire discriminated against him based upon his disability because it failed to provide him with the reasonable accommodation of permitting him to use marijuana in accordance with the Compassionate Use Act. Ross also claimed that his termination was in violation of a public policy created by the passage of the Compassionate Use Act and that Ragingwire also breached an implied contract that it would only terminate Ross for good cause.

The Court held that the Compassionate Use Act only decriminalized medicinal marijuana use under California state law. The Compassionate Use Act did not, and could not, decriminalize marijuana use under federal law. The Court noted that if a company is compelled to permit marijuana use in the workplace, it might be subjected to a search conducted by federal authorities. Another potential consequence is that an employer might be precluded by the Drug-Free Workplace Act from contracting with the state because the state requires a contracting business to certify that it prohibits the possession of controlled substances in the workplace.

The Court rejected Ross's claims because the FEHA does not require an employer to accommodate an employee's medicinal use of marijuana. Although some employers might be willing to employ persons who are using marijuana pursuant to the Compassionate Use Act, the Court determined that the language of the FEHA did not permit a court to require employers to do so. The Court also rejected Ross's public policy claim because the Compassionate Use Act only confers a right to use medicinal marijuana free from state criminal sanctions – it does not confer any employment protections. Similarly, the Court found that Ragingwire's reason for terminating Ross constituted "just cause," and thus the Court did not need to consider Ross's implied contract claim.

The court took a very narrow interpretation of Prop. 215, ruling that it did not create a general right to use medical marijuana, but only protected patients from criminal sanctions for possession or cultivation of medical marijuana. Justices Kenard and Moreno dissented.

The text of the opinion may be found HERE:

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: CALIFORNIA SUPREME COURT RULES EMPLOYERS CAN FIRE MEDICAL MARIJUANA USERS" »

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The defendant's flight was precipitated by unlawful attempted arrest by law enforcement officers. As a result,seizure of defendant's abandoned property was properly suppressed
The defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Oops. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted.

The Court said:

"For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention."

United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

Continue reading "MOTION TO SUPPRESS GRANTED WHEN SUSPECT FLEES" »

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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The number of homicides in Orange, Riverside and San Bernardino counties either saw a sharp drop or remained mostly unchanged last year compared to 2006, according to new crime statistics.

Homicides fell from 12 in 2006 to six in 2007 in the area patrolled by the Orange County Sheriff's Department, officials said. The sheriff's jurisdiction includes 12 of the county's 34 cities, serving a population of about 3.2 million people.

Click HERE for full Los Angeles Times article.

Continue reading "SOUTHERN CALIFORNIA MURDER RATES DOWN IN 2007" »

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Here is yet a other long line of terrible, absurd gang enhancement cases. California Penal Code sec. 186.22(b), the gang enhancement provision, requires that the crime have been committed for the benefit of the gang. Right? Yes, that's what the statute says.

If so, this defendant wins. Right?

But this Court of Appeal says that the crime doesn't actually have to be for the benefit of the gang. It's enough that there was evidence that the crime was committed "in association with" the gang with the intent to assist criminal conduct.

The facts here pretty clearly show that the robbery was not for the benefit of the gang, but it was committed with another gang member and the defendant was a member of
the gang, that's enough to show the "association" required.

Hey, the first outrage of the week for the new year.

People v. Martinez; 2008 DJ DAR 668; DJ, 1/17/08; C/A 4th

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: GANG ENHANCEMENT DOESN'T REQUIRE CRIME TO BENEFIT THE GANG" »

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I can't help but laugh when I review Los Angeles Public Defender Al Menaster's commentary on new California criminal cases. Here's the newest comenatry on People v. Hua, which I posted earlier in the week. Clikc HERE to see that post.

Menaster's commentary:

In Welsh v. Wisconsin (466 US 740), the US Supremes held that the exigency exception to the requirement that the police have a warrant in order to enter a home applies only where the crime being investigated isn't minor.

In Welsh, the crime was driving under the influence; the US Supremes held that this crime was too minor to permit invasion of a home without a warrant.

Of course, the Cal. Supremes upheld entry of a home based on exigent circumstances for a DUI, saying that in Cal., a DUI was so much more serious than a DUI in Wisconsin. Right...

Anyway, this case involves a police entry into a home to investigate the serious crime of, drum roll please, possession of less than one ounce of marijuana. Even this C/A can't stomach this one. They apply Welsh and hold that the entry can't be justified by exigent circumstances.

People v. Hua; 2008 DJ DAR 409; DJ, 1/14/08; C/A 1st

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Posted In: Bad Cop - No Donut , California , California Cases , Evidence , Search & Seizure Cases

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By: North County Times Wire Services -

SAN DIEGO - An immigrant smuggler was sentenced today to nearly five years in federal prison for leading a group of illegal aliens across the border and loading them into a van that overturned, killing two women.

Carlos Rodriguez-Gonzalez, 46, pleaded guilty last Oct. 3 to five counts, including alien smuggling for financial gain and alien smuggling resulting in death.

Defense attorney David Zugman unsuccessfully sought a 36-month prison term, arguing that Rodriguez-Gonzales wasn't the one who flipped the van that killed the victims.

Rodriguez-Gonzalez should have gotten a much lighter sentence than the driver of the van, Marcos Olguin, who received a six-year prison term, Zugman argued.

But U.S. District Judge William Q. Hayes said the defendant's 42 prior apprehensions by immigration officials, including the use of at least three dozen AKAs and 28 dates of birth, was a significant factor in handing down the 57-month sentence.

The judge reminded Zugman that two women, including one who was pregnant, died in the March 8, 2006, crash near Honey Springs Road and state Route 94, between Dulzura and Jamul.

"Your client bears some responsibility for that," the judge told the defense attorney. Authorities said Olguin had 20 passengers in the van when it crashed in light rain.

He told authorities that he was to be paid between $3,000 and $4,000 to drive the van from the mountains east of San Diego to Oceanside.

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: MAN SENTENCED IN SAN DIEGO ALIEN SMUGGLING CASE" »

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By Greg Moran
STAFF WRITER

January 17, 2008

“Cover now!”

The urgent radio plea came crackling from San Diego police Officer Timothy Leahy the night of Oct. 11, 2003. The phrase means one thing: an officer needs immediate help.

Twenty-four seconds later, another message from Leahy, its meaning unmistakable: “Shots fired.”

Lying on the sidewalk on 65th Street near the Encanto Recreation Center was Billye Venable, 26, bleeding from a gunshot to the head fired by Officer James Hunter.

Now, more than four years later, a federal court jury will have to decide what happened during those 24 seconds – and which of two sharply contrasting version of events to believe.

Venable's mother and his four children sued the city of San Diego, saying his death was the result of excessive force by Leahy, Hunter and a third officer, Anthony Bueno.

The suit also alleges civil rights violations and wrongful death, and it says the city conducted an inadequate investigation of the shooting that covered up the facts.

Venable was shot after he tried to run from police officers after the car he was riding in with his brother was pulled over. At the time he was a parole violator with several warrants out for his arrest, and he had a lengthy criminal history.

Venable was wrestled to the ground by Leahy, then a 23-year-old officer with less than two years on the force. What happened next is the core of the case.

Police said that as Venable and Leahy fell, Venable used both hands to grab Leahy's gun and began to tug on it. Bueno kicked Venable to get him to stop struggling, Deputy City Attorney Don Shanahan said.

Hunter jumped on top of the two, who were locked together in a side-by-side struggle. The city said that despite repeated warnings, Venable would not let go of the gun.

Peter Friesen, the lawyer for the Venable family, painted a far different picture.

He said blood-spatter evidence and testimony from five witnesses who saw the altercation will refute the official police version. Instead of struggling, Friesen said, Venable was lying face down, with Hunter kneeling on his back and grasping Venable's left arm behind him.

One crucial distinction: Friesen said witnesses will say it was Leahy – not Bueno – who got up after tackling Venable and was kicking him. It was during the kicks that Hunter shot Venable, Friesen said.

Continue reading "SAN DIEGO CIVIL RIGHTS CASE GOES TO TRIAL: POLICE SHOOTING QUESTIONED" »

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Posted In: Bad Cop - No Donut , Civil Rights , In The News

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EL CAJON DUI COURT: A Ramona woman arrested five times between May and October on suspicion of driving under the influence of prescription drugs was sentenced yesterday to spend two years locked up – a year in jail and a year in a residential treatment center.

Click HERE for full story.

Continue reading "EL CAJON DUI DEFENDANT WILL SPEND TWO YEARS IN PRISON" »

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IT DOESN'T TAKE MUCH TO PROVE YOU ARE A MEMBER OF A GANG

Evidence of tattoos on the defendant's head, and admissions to police, were sufficient for the jury to find active membership in a gang. The fact that the robbery was committed with another gang member was sufficient to prove the robbery was committed "in association with" the gang.

People v. Martinez (C.A. 4th, 1/15/08, G038150) 08 C.D.O.S. 614

Continue reading "CALIFORNIA GANGS:WHAT IS SUFFICIENT EVIDENCE TO PROVE MEMBERSHIP?" »

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Posted In: California Cases , Evidence

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APPEALS - TRIAL COURT JURISDICTION

After the trial court discovered that appellant would not be able to appeal the denial of his discovery motions after entering his guilty plea (apparently contrary to the court's representations), the court recalled the sentence (with the approval of the prosecutor).

They allowed the defendant to withdraw his plea, and then submit to a court trial on documentary evidence.

Defendant then appealed from the new judgment and abandoned the earlier appeal. The appellate court found the second judgment was void, since the court did not have jurisdiction to take the action while an appeal was pending.

The void judgment is reversed, and the merits of appellant's case were not considered. By implication, the defendant is left to seek relief through habeas corpus.

People v. Alanis (C.A. 6th, 1/16/08, H031059) 08 C.D.O.S. 626