Orange County Criminal Defense Lawyer Blog

Califronia Vehicle Code Section 23152, Driving Under the Influence

Wed, 09 May 2012 16:26:33 -0800

What exactly are the elements of a violation of California Vehicle Code Section 23152?
What does it take to prove you are driving in violation of CVC 23152? First of all, a violation of CVC 23152, or commonly called "drunk driving", can occur in one of two ways. One can violate CVC 23152(a) by being under the influence of alcohol and/or drugs or by having a blood alcohol level of .08 or more at the time of driving.

To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the "caution characteristic of a sober person of ordinary prudence under the same or similar circumstances." That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the "field sobriety tests", and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it's more than a .08, the driver is under the influence.

Proving that a driver's BA is over a .08 at the time of the driving is accomplished one of two ways. The driver has a choice of either a blood test or a breath test after he is arrested. If the blood alcohol level comes back at a .08 or more at the time of the test and the test is conducted within 3 hours of the driving then the driver is presumed to have had a blood alcohol level of .08 or more at the time of driving. It's not a foregone conclusion that the driver's BA was at or above the legal limit of .08, it is rebuttable. The prosecutor will try to extrapolate (or estimate backwards) through an expert's testimony that given the known BA level at the time of the test the BA at the time of the driving was within a range that puts the driver over the legal limit.

If a breath test is chosen it can be first done in the field and often times again at the station. Depending on the department, the test in field can serve as the preliminary test first and then the forensic test (one used in court). The breath testing equipment is designed to show what the blood alcohol content is of the driver's blood from a sample of the breath. It takes a detailed discussion of the science of this to explain it fully, but the legislature and the courts have decided that for DUI purposes the breath sample, even with its limitations on accuracy, is a legally accepted method of proof of a driver's level of impairment.

The trial of a driving under the influence case is one of the more complicated trials an attorney can face. The trial will often contain eyewitness testimony from civilians, professional witness testimony from police officers, chain of custody issues with blood specimens, and expert testimony from analysts from the crime lab. An experienced criminal defense attorney can battle the prosecutor to a successful conclusion even under the most difficult circumstances when he has met these challenges before and learned how to conquer them.

Self Defense In California Means "Stand Your Ground"

Fri, 06 Apr 2012 09:20:43 -0800

There has been a lot of publicity over the case in Florida where the unarmed teenager, Trayvon Martin, was killed during a confrontation with George Zimmerman, the neighborhood watch member. Florida's "Stand Your Ground" law has been used as an argument to justify the shooting of this young man. What does California's self-defense law say about when and how the shooting of an unarmed person can be justified?

Every self-defense case turns on the facts of the confrontation, the history of the individuals involved, the relative size of the combatants, the knowledge, if any, of the history of violence between the participants, and a host of other factors. To hear the commentators pontificate on whether or not the shooting was justified without full knowledge of the facts irritates this criminal defense attorney. No one thinks it acceptable to shoot an unarmed man without any justification at all. However, the commentators in this case seem to give their opinions on the case without any reference to the actual facts but, instead, base their opinions on their political or racial biases. Facts drive self-defense cases from both the prosecution and the defense. The law is usually clear. It's the facts that are confusing and often contradictory (depending on the source) and applying those facts to the law is the difficult part. If you already have a bias or your mind is made up based on your personal belief then why examine the facts or the law?

The law of self-defense in California is clear. An aggressor in the initial fight cannot later claim self-defense. How do you define who the aggressor is? Is it the one who threw the first punch? Is it the guy who got out of his car and follows someone who he thinks, rightly or wrongly, is suspicious? Many times the role of aggressor is clear. He punched me without any justification. Then I fought back. Then he beat me to a pulp. Well, of course, I am still the victim even though I fought back. The aggressor cannot claim self-defense just because the person he attacked fought back. But, the difficulty in the tough case is what actions led to the actual physical fight? Were threats made, postures taken, which would lead a reasonable person to believe that if he didn't hit first he would be severely injured or killed if he didn't act quickly? If so, even a first strike can be justified.

The general rules are: you have a right to defend yourself; you have a right to use deadly force to meet a deadly threat; and, even in California, you do not have to retreat, even if you could to avoid the assault on yourself. The application of these general rules of law is the tricky part. The successful conclusion for a defendant in a criminal case involving self-defense requires the skillful use of all available facts by the criminal defense lawyer who applies those facts to the law.

Federal Prosecutors Withhold Exculpatory Evidence

Thu, 29 Mar 2012 08:54:49 -0800

Alaska Senator Ted Stevens was prosecuted for corruption in office by the United States Attorney's Office. He allegedly failed to disclose gifts made to him. He was found guilty following a jury trial. The jury based their decision on what was provided to Stevens' defense team. However, what Stevens and the jury didn't know was that important statements of witnesses and testimony which was exculpatory (tending to show Stevens' wasn't guilty) was not given to the defense.

The lawyers from the US Attorney's Office knew that their most important witness was having sex with underage girls and part of this witness' testimony against Stevens was most probably fabricated. Not only did the prosecutors know about these issues with their key witness, which could be used to impeach his credibility, but they covered it up. Not only didn't they turn the information over to the defense, they hid it from Stevens' defense team. Apparently, the prosecutors' desire to obtain a conviction overcame their sense of right and wrong, justice, and ethical duties.

Why is this important? First of all, the defendant's right to a fair trial hinges on the prosecutor being fair and open with all evidence which could be termed exculpatory. Anything that reflects on the credibility of key witnesses must be turned over to the defense. Failure to do so cheats the system, the defendant in question, and undermines everyone's faith in the criminal justice system.

In this case, Senator Stevens was unable to continue as a US Senator. The citizens of Alaska were deprived of their elected representative. In the end, if the prosecution, who controls the flow of information and conduct of law enforcement, can't be trusted to respect justice then every prosecution of every defendant is called into question.

Respect for the law is necessary for the citizens of our country. If you don't believe you will be treated fairly in the judicial system, society can descend into anarchy. People will take the law into their own hands. Corruption of the judicial system leads to abuse and the trampling of citizens' rights. If you can't trust the prosecutor to be honest and to turn over evidence which could lead to exoneration faith is lost that there is any justice.

The criminal defense attorney can require the court to order the prosecutor to turn over exculpatory evidence. But, if the prosecutor seeks to subvert justice then each and every one of them should pay the price and find themselves in the defendant's seat at the table of justice.

Orange County, CA Probation Violations

Fri, 16 Mar 2012 15:31:49 -0800

What does it mean when someone is put on probation? Many times you'll hear a defendant is put on probation after either a guilty plea or as part of a sentence following a guilty verdict. First of all, probation is a conditional sentence. When someone is judged to be guilty as a result of a plea or guilty verdict the judge can sentence the defendant to the maximum penalty under the law. If that happens there isn't any more punishment to be had and there isn't any probation. But, a conditional sentence means that the judge is giving a sentence less than the maximum and in consideration of that the defendant is told he is on probation to the court, usually on certain conditions.

The conditions of probation can be whatever the judge orders someone to do as a result of the conviction. For example, the judge can order the defendant to serve 30 days of community service as a condition of probation. If the defendant doesn't do the community service the judge can find a violation of probation and impose some or all of the rest of the maximum sentence. It works something like reward and punishment. If you do what you are ordered to do the reward is no more jail time or fines or whatever else the judge might do if you don't follow through. Punishment comes into play when the defendant fails to live up to his promise to the judge that he would abide by the conditions of his probation. That punishment can be up to whatever the maximum is for whatever crime the defendant was convicted of when he plead or was found guilty.

When a defendant is sentenced to probation, either formal (with a probation officer ) or informal (without) the defendant is asked: "Do you accept the conditions of probation as I have stated them?" If the defendant says yes, he has a contract with the court to accomplish whatever it is the judge has set out for him to do.

If you fail to do what the judge asked of you then there can be a probation violation hearing. The judge decides if you violated your probation. There isn't a right to a jury trial with a probation violation. The standard of proof is lower than for someone who has not been convicted as well. That way the judge can find you in violation even though it isn't proven beyond a reasonable doubt.

The Law Offices of Rudolph Loewenstein often represents defendants in probation violation hearings. Our assistance often results in a lessening of the judge's view of the penalty to be imposed or convinces the judge that no violation actually occurred. It is important to remember that once you are on probation you are at the mercy of the court if you don't fulfill your promise to conform to the conditions of your probation as the judge set them out.

Orange County Criminal Defense Lawyer Attends Continuing Legal Education

Tue, 21 Feb 2012 12:09:39 -0800

Lawyers must continue their formal legal training no matter how long they have been practicing law. The California State Bar Association requires lawyers to attend Continuing Legal Education (CLE) classes and monitors or audits lawyers' records to ensure they have attended the necessary number of hours. This is true even for lawyers, like me, who teach other lawyers about how to defend driving under the influence cases.

CLE is important for two reasons. First, lawyers have to keep up on changes in the law and there isn't any better way than to attend classes taught by experts in their field. Second, CLE is a great way to continue to be energized about the practice of law. It's exciting to attend a conference and talk to other lawyers about how they are defending their cases. Attending the conference and listening to other defense lawyers is one thing but discussing your particularly difficult cases with other defense attorneys in a consultation is really exciting. It's like having a law firm of the best of the best working together to put a winning strategy in action.

I recently attended the Capital Case Defense Seminar. Nearly 1000 other criminal defense lawyers were brought together to learn, discuss, and work towards eliminating the death penalty in California. During the conference Barry Scheck gave a very informative talk on Forensic Evidence. Of course, Barry Scheck has worked tirelessly through The Innocence Project to free many wrongfully convicted innocent defendants. Finding out how he helped to free an innocent man after 26 years of imprisonment in Texas was inspiring. Listening to him speak makes me want to be a better lawyer.

I left the seminar a better, more informed lawyer, but more importantly I felt rejuvenated in my profession. I am even more determined to uphold the highest standards of our profession and our mission to protect our clients from the government. It reinforced my pride in being a criminal defense lawyer and a Certified Specialist in Criminal Law.

The Supreme Court and Eyewitness Testimony

Thu, 09 Feb 2012 09:53:17 -0800

The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor's purse and the class is asked to describe the suspect. It's incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It's happened to all of us.

Stress of an unexpected, even scary, situation can affect one's perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely "wrong". Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn't mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn't always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a "six pack". The eyewitness is asked to view the subjects, admonished it's just as important to exonerate the innocent as to find the guilty person and just because a picture is in the "six pack" it doesn't mean the perpetrator's photo is contained in it. When that doesn't happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent "six pack" ? Isn't that overly suggestive? Isn't that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

In spite of the above, the Supreme Court has decided in Perry v. New Hampshire that the "reliability of relevant testimony typically falls within the province of the jury to determine". In plain terms, unfairness, unreliability, and suggestiveness as well as due process challenges to the identification procedure are now points to be argued to the jury. Don't look to the judge for help. Look to the best criminal defense trial lawyer you can find because that is where the case and the identification will be decided.

IN LOS ANGELES, CA, DO VIDEOTAPES OF A POSSIBLE CRIME HELP OR HURT THE DEFFENDANT?

Tue, 31 Jan 2012 13:32:18 -0800

Recently, a video was seen on television showing a Los Angeles Sheriff's Deputy questioning a woman on a train. The woman was facing two deputies. One was a woman and one a man. Both deputies were in uniform and both were substantially larger than the woman they were contacting. During the conversation another passenger began to video the incident. After the woman appeared to be non-responsive, or at least not responding as the deputies would like, the male deputy suddenly elbowed her in the face with a violent and vicious forearm. Upon seeing the passenger videotaping the incident the deputy tried to seize the cell phone. The citizen refused to turn over his cell phone to the deputy fearing the video would be erased or tampered with and the true nature of the incident lost forever.

First of all, a citizen does not have to relinquish his or her video equipment to law enforcement just because they demand it. It is your personal property and without further justification, for example a search warrant, unless the citizen voluntarily surrenders it, your personal property is just that, yours. In this case, I have no doubt that if the deputy had taken possession of the citizen's camera that video would have been destroyed.

Secondly, in defending people charged with crimes I have learned that the truth of exactly what happened isn't always reflected accurately in the police reports. Now that video has become so easy and so available to anyone with a cell phone, many times the incidents between citizens and law enforcement are captured on video. One can argue that the video doesn't capture the whole incident or that it somehow misrepresents what happened or what occurred before the camera was turned on, but one cannot deny the truth that cameras help criminal defendants more than they hurt. I would much rather have a video of the encounter between the police and my client. With video cameras the jury and anyone else can see what really happened and no amount of spin in the police reports will disguise the truth.

Recent Supreme Court Case Requiring Search Warrant for GPS Device

Tue, 24 Jan 2012 13:14:26 -0800

On January 23, 2012, the United States Supreme Court issued it's decision in United States v. Jones. The Jones decision is noteworthy because it requires law enforcement to obtain a warrant when using a GPS device. A look at the facts in Jones is necessary to understand the Court's reasoning.

The Government obtained a search warrant which allowed it to install a GPS tracking device on a car registered to Jones' wife. The warrant authorized the GPS to be installed within 10 days of the issuance of the search warrant. The agents waited until the 11th day to install the device (after the expiration of the warrant). Then the Government tracked the vehicle's movements for 28 days.

As a result of the tracking of the vehicle an indictment was issued charging Jones with drug trafficking and conspiracy. The trial court issued a split decision when Jones moved to suppress the evidence obtained by use of the GPS device, stating when the vehicle was parked at Jones' house it was an illegal search but when it was on the public streets there wasn't any expectation of privacy and therefore no illegal search. Jones was convicted and appealed.

At oral argument the Supreme Court members voiced concern that even they could be placed under surveillance at the whim of the Government without the benefit of a search warrant. In other words, the buffer between an invasion of privacy by the Government was becoming so intrusive without a court officer's watchful eye anyone's privacy could be invaded at any time. In its decision the Court held the Fourth Amendment to the United States Constitution protects "persons, houses, papers, and effects, against unreasonable searches and seizures". The Governments' physical intrusion on an "effect" (car) for the purpose of obtaining information equals a search within the meaning of the Fourth Amendment. The Court did not address the Government's contention that Jones did not have a "reasonable expectation of privacy" because the Court focused on the Government trespass on the area where the GPS device was placed.

Significantly, the Court did not overrule the recent line of cases which sanctioned monitoring by other forms of electronic devices such as beepers without a search warrant. In addition, while the decision was unanimous not all the justices joined in the rationale for the decision. In essence, the Supreme Court didn't want to allow such GPS devices to be placed on vehicles without a search warrant but had varied reasons why it was a violation of the Fourth Amendment. Because of this lack of unanimity of reason, the decision may not have the far reaching effect that some think it does.

A WASTE OF THE COURT'S TIME AND MONEY IN LOS ANGELES, CA

Wed, 04 Jan 2012 17:24:40 -0800

How many criminal cases are in the courthouse that don't belong there? Plenty, that's clear from a recent case in the Los Angeles County Court. A homeowner gets cited for his dog running loose. The citation is for a misdemeanor because the County Ordinance carries the possibility of six months in jail for each violation. If a criminal defendant is subject to a jail sentence then certain rights apply.

The United States Constitution guarantees due process, right to a jury trial, confrontation of one's accuser by the defendant, and the right to remain silent, among other rights. All these rights apply in California when a defendant is facing jail time for a violation of law.

But, surely, the dog owner isn't facing real jail time for letting his dog run loose....is he? If the law that is violated is a misdemeanor, then all the above rights apply no matter how absurd the possibility of jail time is. Therefore, if the dog owner wants a Public Defender, at tax payer expense, and he is indigent, he is going to get the Public Defender. The Public Defender is an attorney, with clerical staff, office costs, investigators, and with an overwhelming case load of needy clients. Yet, no matter, the dog owner gets a lawyer at government expense.

Or if the dog owner is a responsible, non-indigent taxpayer, then he has to pay for his own lawyer, his own investigator, and his own expenses. But, surely common sense will prevail and the judge will see that his calendar is full of cases that really demand his time and energy to a larger extent than this dog running loose case. Not so. The system marches on. It doesn't look right or left just keeps plowing forward wasting thousands of dollars prosecuting the miscreant dog owner. The prosecutor, yes, there is a real Deputy District Attorney who is prosecuting this case, doesn't see what a waste of precious resources this is. Neither the judge nor the prosecutor reduce this case to an infraction thereby eliminating the possible jury trial, appointment of the Public Defender, and the waste of countless thousands of dollars. Much like the dog, this case is running wild with taxpayer money. And the court system says it's running low on funds and needs more money fed into it from the precious few taxpayer dollars available. Is anyone listening? Common sense is screaming but apparently only a few of us care.

IN ORANGE COUNTY, CA, WORKING IT OUT AS A VICE COP

Wed, 28 Dec 2011 17:13:53 -0800

Getting assigned to vice as a police officer is tough assignment. Often times the required duties take the officer into dangerous situations. Quick thinking is often a necessity. Tension can build to the breaking point. How to relieve all that tension? The vice cop has found the answer. He gets a massage.

Massage parlors are apparently a hot bed (pun intended) of prostitution activity. Many massage salons are being raided by undercover police officers. Of course, they're only under cover for a short period of time. But, while being uncovered, I mean undercover, they get their muscles kneaded, their backs oiled, their limbs stroked, hot towels applied, and tired sore bodies cared for from head to toe, all by young women who tend to their needs as though they were real paying customers without a law enforcement agenda. The tax payer dollars paid to find prostitution occurring behind closed doors and under warm towels is truly money well spent. Or is it?

Vice squads are combing the massage salons looking for young women who would offer sexual services in return for money. Negotiations for these services have to be realistic in order to arrest the offending party. In order to enforce the realism, undercover officers of the vice squad must frequent various massage salons and put their bodies through torturous episodes as described above. Once sufficient stroking has occurred, how long and how much is subject to ones' individual ability to withstand the torture, the "bust signal" can be given. One has to hope that the "gotcha" moment doesn't come too soon and the bust has to be aborted due to circumstances beyond the undercover officer's control. In that case, one would assume, the bust does not occur and the tax payer money spent on the massage wasn't wasted because, well, the officer did get a good massage.

Many vice officers have to repeatedly go into a suspected illicit massage salon before making a bust for prostitution. Why? Because the erstwhile prostitutes are on to the scheme and won't agree to an act of prostitution unless the vice cop is a known customer. So of course, the vice cop(s) have to spend lots of taxpayer money in order to put a stop to this conduct. All the while, the tension of their day is dispelled by the tireless work of the masseuse. In the pursuit of a happy end to this episode it's the taxpayer who pays the bill. But, at some point, if the taxpayers only knew where their money was going don't you think the happy end to this story would be to tell the cops to go catch real criminals with our precious tax money?

WHAT HAPPENS WHEN PROSECUTORS WITHHOLD EVIDENCE?

Wed, 21 Dec 2011 16:34:29 -0800

Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn't commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn't that DNA exonerated Morton, but that other evidence that was in the DA's possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton's innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton's file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim's credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim's credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim's home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim's property and used the stolen credit card and it wasn't Morton, then maybe Morton wasn't the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.

The law in this area is clear. The United States Supreme Court in Brady v. Maryland established in 1963 that the prosecution had to voluntarily turn over all evidence to the defendant which could, not would, but could, seemingly tend to exonerate the defendant. The problem comes when the prosecutor doesn't fulfill his obligation to turn the required evidence over to the defense. When this violation occurs the defense usually doesn't even know it happened. The suppression of exonerating evidence violates the public trust in the fundamental fairness of the criminal justice system. If there isn't trust, there isn't confidence that justice will be done. At that point, the people will not submit to the judiciary. Vigilante justice and chaos can become the norm and not the exception.

Every defense attorney must be aware of the possible misuse of the public trust by the prosecution and take steps to make sure their client doesn't become the next Michael Morton. A formal discovery motion compelling disclosure of all possible evidence will force the prosecutor to tell the judge in open court that he has given all possible evidence to the defense. If the prosecutor is prepared to boldly lie to the judge then, truly, the system is forever tarnished. Few prosecutors have the meanness of spirit and willingness to state openly a falsehood which could be discovered at a later time. Even so, the defense must make sure the system is working and prevent the wrongful conviction of their clients.

Sentencing Dr. Conrad Murray

Wed, 07 Dec 2011 10:06:32 -0800

As almost everyone on planet earth knows, Dr. Conrad Murray was convicted of Involuntary Manslaughter in the death of Michael Jackson. On November 29, 2011, Dr. Murray was sentenced to the maximum term of four years in State Prison. How did the judge determine that four years was the appropriate sentence?

The cynical among us might just say that because the deceased was the most famous pop star in the world that the judge would have been crazy to give Dr. Murray anything less than the maximum. Those of that opinion could easily conclude the public expected the maximum and therefore why would the judge do something that would enrage the public and possibly cost him his job in the next election? Those cynical enough to believe that would think the discussion would end right there. But, what did the judge have to do under the law in order to justify the maximum sentence? The answer can be found in the Rules of Court.

The Rules of Court set forth the criteria affecting probation (Rule 4.414). Dr. Murray was technically eligible for probation, no matter how unlikely that might have been as a practical matter. There are two sub-sets to consider: facts that relate to the crime and facts that relate to the defendant.

Factors relating to the crime include, but are not limited to: the nature, seriousness, and circumstances of the crime...., and; whether the defendant was armed or not, and; the vulnerability of the victim, and; whether the defendant inflicted physical or emotional injury, and; the degree of monetary loss..., and; whether the crime was committed because of an unusual circumstance, and; whether the defendant was an active participant, and; whether there was great provocation making unlikely the crime would re-occur, and; whether the crime was sophisticated or professional on the part of the defendant, and; whether the defendant took advantage of a position of trust or confidence to commit the crime.

Facts that relate to the defendant are also important for the judge to consider. These include: prior criminal conduct, prior performance on probation, willingness to comply with the terms of probation, ability to comply with reasonable probation terms, the likely effect of imprisonment on the defendant's dependents, the adverse collateral consequences on the defendant's life from the felony conviction, remorsefulness of the defendant, and the likelihood of danger to others if defendant is not imprisoned.

If the judge determines he wants to imprison the defendant he has to select the proper term from the range set forth in the crime itself. In this case it was either two, three, or four years. The court selected the upper, or maximum, term. This is based on any relevant factor including circumstances in mitigation or aggravation. The judge can look to the case record, the probation officer's report, other reports or statements, and evidence introduced at the sentencing hearing. (Rule 4.420) In effect, the judge could do anything he wanted due to his ability to look at all "relevant" evidence. This is where the judge's personality, personal and professional background, and own opinion on the state of the evidence weigh heavily on his decision.

As one can see from the above, the four year maximum term was almost a foregone conclusion. The sentencing hearing had to go forward but one could pick out many factors that can be found in the Rules of Court which foretold which way the judge was going to go. No one should have been surprised that Dr. Murray got the maximum. With public sentiment and Dr. Murray's own lack of remorse why should the judge have given him a break? The answer is clear; there wasn't any reason to and he got what he must have expected.

Dr. Murray Won His Case Before it Ever Started

Fri, 02 Dec 2011 10:13:23 -0800

Dr. Murray killed Michael Jackson. No doubt about it since the jury found him guilty of involuntary manslaughter. He got sentenced to the maximum term of four years. Dr. Murray won his case when he got convicted. How can I say that when he went through a hard fought trial that lasted weeks and cost him and the taxpayers millions of dollars? According to the evidence, he lied to the paramedics, failed to call 911 in a timely fashion, treated his patient with an extremely dangerous drug under circumstances that failed to meet the most minimum of medical standards among a host of other omissions and commissions. So involuntary manslaughter was the charge and guilty was the verdict. Who says the Los Angeles County District Attorney's Office can't win the big ones? Who says that the District Attorney's Office loses one high profile case after another? They got their man here didn't they? Well, yes and no as far as I'm concerned.

Yes, the LADA got a conviction as charged. But, why only charge Dr. Murray with Involuntary Manslaughter? Why not seek a Second Degree Murder conviction? Why not charge both Murder and Involuntary Manslaughter? Based on the facts as presented by the prosecution, the jury could very easily have found Dr. Murray guilty of Second Degree Murder. Why? The real question is why not?

To find a defendant guilty of second degree murder you must look to CalCrim Section 520 which sets out the elements of Second Degree Murder. To prove this is the real crime Dr. Murray is guilty of the DA needed to prove the following: The defendant committed the act that caused the death of Michael Jackson and when he acted he had a state of mind of malice aforethought. The relevant malice element here is implied. Did Murray's actions consist of the following: 1. Did he intentionally commit an act, and; 2. The natural and probable consequences of the act were dangerous to human life, and; 3. At the time he acted, he knew his act was dangerous to human life, and; 4. He deliberately acted with conscious disregard for human life. Ask yourself, from the facts of this case, wasn't this the proper charge?

As a final thought, even if the DA had fallen short on one of the above elements for murder, would he have "lost" the case? The answer is absolutely not. Why? Because Involuntary Manslaughter is a lesser and included offense of Second Degree Murder. Therefore, if the DA had charged both Involuntary Manslaughter and Murder the jury could have considered both crimes in deliberations. Dr. Murray wouldn't walk free under any circumstance if both were charged. But, he didn't have to risk the possibility of a murder conviction and thus life in prison because the DA never charged him with anything more than Involuntary Manslaughter. When the charges came out from the DA, Dr. Murray had to be smiling because he won before the first witness was ever called.

Orange County, CA Veterans and the Criminal Justice System - Part 2

Wed, 16 Nov 2011 09:48:54 -0800

Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) is a real problem in our veterans returning from combat deployments. Many times the conditions are not diagnosed until the veteran becomes a defendant in the criminal justice system. How the criminal justice system deals with these defendants is a great challenge in the future.

The Veteran's Court has been instituted in some courts in California in an effort to acknowledge the veteran's service and deal with it in an organized, comprehensive fashion complete with Veteran's Administration participation. Yet, what happens to the veteran who doesn't qualify for Veteran's Court? While Veteran's Court is a great alternative when available, in some jurisdictions, Veteran's Court doesn't even exist. Now Veteran's Court funding, as all the system's funding, is at risk.

The prosecutor who is willing to consider the defendant's service in a meaningful way has many options at his disposal, short of entry into Veteran's Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system's attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

The prosecutor must be convinced that society will be protected and better served, not by just punishment, but by trying to make the defendant whole again. Continuances to show acceptance of responsibility, treatment to establish a drug free life, alternative sentencing if conviction is mandated are a few solutions available to the defense attorney. Every manner of alternative thinking must be on the table in the representation of the defendant who is a veteran. In order to do that, the defense attorney must be specially aware of the unique problems and solutions available to our military.

Orange County, CA Veterans and the Criminal Justice System -- Part I

Mon, 14 Nov 2011 09:31:44 -0800

Veteran's Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran's military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran's (defendant's) service has helped protect the very system he now finds himself in.

Too often the prosecutor has the attitude that this veteran (defendant) isn't any different than anyone else. The common mantra of the prosecutor is, "Everyone should be treated the same no matter what their personal story or background is. Justice is blind".

To that, I respond, justice has to open it's eyes to who people are, what caused them to come into contact with law enforcement, and if they are veterans to appreciate the trauma they have suffered in the defense of our country. True justice cannot afford to be blind. The veteran deserves to have his service recognized as a cause of his criminal conduct and every effort needs to be made to recognize this in fashioning a resolution of the criminal case. Rehabilitation and not punishment must be the goal. To do anything else is just criminal.