Los Angeles Physician Sentenced to Five Years in Prison for Assaulting Bicyclists

January 9th, 2010

A California doctor was sentenced to 5 years in prison today for seriously injuring two cyclists with his car. Christopher Thompson, 60, was convicted in November of assault with a deadly weapon and other charges for slamming on his brakes after pulling in front of the bicyclists. Judge Scott Millington called the case a “wake-up call” to cyclists and motorists and noted that Thompson had shown a lack of remorse for his role in the accident—according to a police officer, he said he braked hard to “teach them a lesson.”

The cyclists were thrown into Thompson’s rear window; one suffered broken teeth and a broken nose, the other a separated shoulder, the Los Angeles Times reports. Thompson wept in court today, saying, “I would like to apologize deeply, profoundly from the bottom of my heart.” Millington said the case illustrated a need for more bike lanes and for motorists to be mindful of the vulnerability of bicycle riders.

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The December 21, 2009 Polanski Decision - Case No. B217290, LET’S MOVE ON

December 22nd, 2009

The Court of Appeal holds that trial court correctly refused to dismiss Mr. Polanski’s case even though allegations of misconduct existed:

“We have thoroughly reviewed the record of the proceedings in this matter as well as the allegations made by Polanski of serious misconduct by the original judge and a member of the district attorney’s office.  Even though the allegations, if ultimately found to be true, present a very significant systemic issue of injustice and misconduct, we cannot conclude that the trial court abused its discretion here in precluding Polanski from affirmatively seeking relief from the trial court until he submitted to its jurisdiction.  Contrary to Polanski’s argument, the trial court did not simply deny Polanski’s request for relief because of his status as a fugitive, without weighing any equitable factors.  To the contrary, the court exercised its discretion in reaching its conclusion, and its thoroughly considered ruling was in no respect arbitrary, capricious, or patently absurd.”

The Court of Appeal Finds the Availability of Legal Remedies Other than Flight

“Polanski argues that the trial court should be precluded from invoking the disentitlement doctrine to deny him relief today because his absence resulted from the original trial judge’s own misconduct in failing to abide by the sentencing agreement and threatening Polanski with additional incarceration coupled with illegal deportation conditions.  Even in light of our fundamental concern about the misconduct that has been alleged here with significant evidentiary support, flight was not Polanski’ s only option.  It was not even his best option.  From the record Polanski has provided to this court, at the time he fled Polanski knew what he needed to know to make a case for a violation of due process,  and at all times in this matter, he has had means at his disposal other than flight by which he could have obtained relief.”

The Court of Appeal lists the remedies available to him:

“Even now Polanski has remedies besides seeking a dismissal of the entire action from this court while remaining a fugitive.  While section 977, subdivision (b)(1) imposes a general requirement of personal appearance for sentencing in felony matters, section 1193 permits defendants to be sentenced in absentia when specific conditions are met.  Whether the offense is treated as a misdemeanor or a felony, Polanski could request to be formally sentenced in absentia.  Section 1193, subdivision (a) provides that when a defendant is convicted of a felony, “the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence . . .  Sentences for misdemeanors, of course, may be imposed in absentia without the satisfaction of any conditions.  (§ 1193, subd. (b).)  At sentencing, Polanski’s counsel could argue that the proper sentence is the time already served. Read the rest of this entry »

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UNITED STATES SUPREME COURT CONSIDERS WHETHER A MIRANDA WARNING EXPIRES

December 22nd, 2009

Maryland v. Michael Blaine Shatzer, Sr.

USSC Case No. 08-680.

Oral Argument Date:  Oct 5 2009

In the groundbreaking case of Miranda v. Arizona, the United States Supreme Court held that police officers must inform suspects of their right to remain silent, to consult with an attorney, to have an attorney present during questioning, and to have an attorney appointed if they cannot afford one. The Miranda opinion also noted that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

In the subsequent case of Edwards v. Arizona, the Supreme Court addressed a cognate question: What happens when a police officer reads a suspect a Miranda warning, but still asks questions after the suspect invokes the right to counsel? In Edwards, the Court held that statements made in response to such questioning are inadmissible at trial.

This fall, the Supreme Court will revisit the Miranda-Edwards line of case in Maryland v. Shatzer. Mr. Shatzer, the respondent in this case, was serving a prison sentence on an unrelated crime when a detective first interviewed him. When the detective read Mr. Shatzer his Miranda rights, Mr. Shatzer responded that he wanted an attorney present while the detective asked him questions. The detective wrote in his report, “When I attempted to again initiate the interview, he told me that he would not talk about this case without having an attorney present.” The detective then terminated the interview and closed the case. Two years and seven months later, though, a different detective conducted a follow-up investigation. That detective read Mr. Shatzer his Miranda rights and then — without allowing Mr. Shatzer any access to an attorney — interrogated him. Mr. Shatzer then confessed that he had committed a crime.

At trial, Mr. Shatzer argued that his confession was inadmissible, because the second detective obtained it in violation of Edwards. But in Edwards, only a day had elapsed between the suspect’s invocation of the right to counsel and the second interrogation. In contrast, two years and seven months had elapsed between Mr. Shatzer’s invocation of the right to counsel and the second interrogation. Moreover, while the suspect in Edwards was in continuous police custody between the first and second interrogation, Mr. Shatzer was not. Mr. Shatzer, though, was in prison for that entire period. Read the rest of this entry »

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Framed for child porn by a PC virus

November 8th, 2009

Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography.

Heinous pictures and videos can be deposited on computers by viruses — the malicious programs better known for swiping your credit card numbers. In this twist, it’s your reputation that’s stolen.

Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they’ll get caught. Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites.

Whatever the motivation, you get child porn on your computer — and might not realize it until police knock at your door.

An  investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus. It can cost victims hundreds of thousands of dollars to prove their innocence.

Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

“It’s an example of the old `dog ate my homework’ excuse,” says Phil Malone, director of the Cyberlaw Clinic at Harvard’s Berkman Center for Internet & Society. “The problem is, sometimes the dog does eat your homework.” Read the rest of this entry »

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Are prosecutors immune from lawsuits for fabricating evidence?

November 5th, 2009

In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court’s decision will reveal the extent to which prosecutors are immune from liability for their pre-trial misconduct. This clarification may affect the way prosecutors try cases, and will, undoubtedly, influence the degree to which defendants can hold their prosecutors accountable for due process violations.

The Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.

Pottawattamie County, IA v. McGhee (08–1065) | LII / Legal Information Institute

Oral argument: Nov. 4, 2009

Question presented

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.

Issue

Can a prosecutor who knowingly procures false testimony and introduces such testimony at trial be subject to a §1983 civil suit?

Facts

In 1978, Petitioners Joseph Hrvol and David Richter obtained convictions and life sentences against Respondents Curtis McGhee and Terry Harrington for the murder of retired police captain John Schweer in Council Bluffs, Iowa the previous year. See McGhee v. Pottawattamie County, 547 F.3d 922, 925 (8th Cir. 2008). Although police attention initially focused on Charles Gates, a man identified by two witnesses as being near the scene with “a shotgun and a dog,” Hrvol and Richter soon turned their attention to McGhee and Harrington. See id. at 926. The foundation of their case against McGhee and Harrington was 16-year-old Kevin Hughes. See id. Hughes, who already had a lengthy criminal record, was facing charges for stealing a Cadillac and possible involvement in the Schweer murder. See id. Detectives offered not to charge Hughes for the murder and drop the laundry list of other criminal charges against him and held out the possibility of his recovering a $5,000 reward for information regarding the Schweer murder if he cooperated in the investigation. See id. at 927. Hughes agreed. See id. Read the rest of this entry »

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Can a case get dismissed if prosecuted beyond a time frame set by the law?

November 1st, 2009

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.

Smith v. Superior Court 10/13/09 Case No. A124963 __ Cal.App.4th___

Defendant’s case gets continued several times over his objection and
without good cause. Court of Appeal dismisses case.

Filed 10/13/09
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONALD SMITH,
Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.

A124763

(San Francisco City and County
Super. Ct. No. 207788)

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.
I.  FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2009,  an information was filed, jointly charging Smith and Christopher Sims (Sims) with one felony count of first degree residential burglary (Penal Code, § 459).   Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived.  April 13 was calculated as the last day for trial.  The court was informed on April 10 that counsel for codefendant Sims was ill and unavailable for trial.  As to Smith, the court indicated its intent to sever or dismiss because the last day for trial was the following Monday, April 13.  However, the People argued that good cause existed to continue the case for both defendants and not affect a severance. Read the rest of this entry »

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Can an insane defendant choose the plea he wants to enter?

October 28th, 2009

Defendant wants to enter a plea of not guilty by reason of insanity. Court holds that a defendant can choose to enter whatever plea he wants, even a plea of not guilty by reason of insanity.

Defendant’s conviction for burglary, attempted robbery, and related crimes is affirmed as, although the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter a plea of not guilty by reason of insanity (NGI) and in failing to remove defense counsel who refused to allow defendant to enter his NGI plea, both of the errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity where defendant claimed he was hallucinating from crystal methamphetamine use while playing the video game Grand Theft Auto for 10 hours.

People v. Henning 10/14/2009 Case No. C060371 __ Cal.App.4th__

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
—-

THE PEOPLE,
Plaintiff and Respondent,
v.
JAISEN LEE HENNING,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Placer County, Charles D. Wachob, Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
After a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of

illicit drugs, defendant Jaisen Lee Henning donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business. Fleeing from the scene, Henning led police officers on a high-speed car chase before being apprehended.

A jury convicted defendant of burglary (Pen. Code, § 459),1 attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a) (2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a) (1)). On appeal, defendant argues that (1) he should have been allowed to plead not guilty by reason of insanity (NGI) because he committed his crimes while believing he was merely following the goals of the video game he had been playing, (2) his request for a second substitution of appointed counsel should have been granted pursuant to People v. Marsden
(1970) 2 Cal.3d 118 (Marsden), and (3) CALCRIM No. 220 failed to instruct the jury that each element of the charged offenses required proof beyond a reasonable doubt. Read the rest of this entry »

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How does a murder benefit a gang?

October 24th, 2009

Defendant admits that he murdered someone. However, he denies that he committed the murder to specifically benefit the gang. Court says defendant benefitted the gang because violent crimes elevate the status of the gang within gang culture, and intimidate neighborhood residents who might otherwise report crimes or testify.

People v. Vazquez 10/13/2009 Case No. B213000 __ Cal.App.4th___

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,    2d Crim. No. B213000
(Super. Ct. No. 7A066266)
(Los Angeles County)
v.
GILBERT VAZQUEZ, Defendant and Appellant.

Gilbert Vazquez appeals his conviction, by jury, of first degree murder in the shooting death of Juan Lopez. (Pen. Code, § § 187, 189.)1 The jury also found true special allegations that appellant intentionally and personally used a handgun
(§§ 12022.53, subd. (b)-(d)), and that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subdivision (b)(1)(C).) Appellant was sentenced to a total term in state prison of 50 years to life. He contends the gang enhancement should be reversed because there is no substantial evidence that he committed the murder with “the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b).) He further contends the trial court erred when it conditioned the amount of a restitution fine on appellant’s payment of direct victim restitution. We modify the restitution fine and, in all other respects, affirm the judgment. Read the rest of this entry »

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Shouldnt the Threat of Arrest and Prosecution Be Enough to Insure That Medical Marijuana Dispensaries Operate Legally?

October 21st, 2009

California Health and Safety Code section § 11362.5
(Compassionate Use Act) permits the use of marijuana for medical
reasons. Under the Act, no physician in California shall be punished, denied any right or privilege, for recommending marijuana to a patient medical purposes. Also, the laws dealing with the possession of
marijuana, do not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of physician.

However, even doctors, patients, and caregivers can still be arrested and criminally prosecuted for possessing marijuana. The California courts have held that a defendant charged with a marijuana crime must raise reasonable doubt regarding the compassionate use defense. So a person can still be arrested and criminally prosecuted for possession and/or transportation of marijuana.

Shouldn’t the threat of arrest and prosecution be enough to insure
that dispensaries operate legally?

By: Fay Arfa, Los Angeles Criminal Defense Attorney

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Roman Polanski - Time to Let Go or Time for Justice?

September 28th, 2009

On September 27, 2009, the Swiss Police arrested film director
Roman Polanski in Zurich, Switzerland. Polanski faces possible extradition to the United States for having sex with a 13-year-old girl in 1977. Under California law, 13-year-old minors are incapable of consenting to sex. The prosecution originally charged Polanski, aged 43 at the time, with sixcounts of rape, sodomy, child molestation and giving drugs to a minor. He faced up to 50 years in state prison. In August 1977, Polanski pleaded guilty to a single count of having unlawful sex with the 13-year-old girl. In December, he went into prison for a 90-day psychiatric study, but was released after 42 days. In February 1978, Polanski jumped bail and fled to France, his native country where he has remained ever since.

Mr. Polanski had a tough life. His accuser, Samantha Geimer, who
long ago identified herself publicly, wants the case dismissed and wants the saga concluded. Polanski, a French native, who was taken to Poland by his parents, escaped Krakow’s Jewish ghetto as a child during World War II and lived off the charity of strangers. His mother died at the Nazis’ Auschwitz death camp. Polanski became a film maker in Poland and eventually came to Hollywood, where he directed several movies. In 1969, his wife, actress Sharon Tate, and four other people were gruesomely murdered in Los Angeles by followers of cult figure Charles Manson. Tate was eight months pregnant at the time.

Should the case against Mr. Polanski be dropped since so much time
has passed, the accuser wants the case concluded and Mr. Polanski
suffered several horrific tragedies over his lifetime? Or, should he face the criminal justice system?

By: Fay Arfa, Los Angeles Criminal Defense Attorney

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