Best Defender Bytes:

October 28, 2009

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

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__


Plaintiff and Respondent,
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. (more…)

October 24, 2009

How does a murder benefit a gang?

Filed under: California Defense Attorney — Tags: , , , , — fayarfa @ 9:19 pm

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___

Plaintiff and Respondent,    2d Crim. No. B213000
(Super. Ct. No. 7A066266)
(Los Angeles County)
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. (more…)

October 21, 2009

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

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

Powered by WordPress