Archive for the ‘California Defense Attorney’ Category

GPS-Disappointing denial of rehearing

Wednesday, August 18th, 2010

GPS: Disappointing denial of rehearing en banc (hopefully) sets stage for Supreme Court reversal.

Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.

Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at * 1 (Kozinski, C.J., dissenting).

Issue(s): Petition for rehearing en banc.

Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at * 1.

Of Note: Chief Judge Kozinski begins his dissent with a bang: “The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.” Id. at * 1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage. ” Id. at *3 (Kozinski, C.J., dissenting).

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INVOLUNTARY MANSLAUGHTER VERDICT IN BART KILLING

Friday, July 9th, 2010

A Los Angeles convi

cted a white former transit officer of involuntary manslaughter in the shooting death of an unarmed black man on an Oakland train platform. Johannes Mehserle was found guilty on Thursday in the New Year’s Day 2009 killing of 22-year-old Oscar Grant. Involuntary manslaughter carries a sentence of two to four years.

The California Penal Code section 192 defines manslaughter as follows:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary–upon a sudden quarrel or heat of passion.

(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular–

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

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Supreme Court White-Collar Crime Ruling

Tuesday, June 29th, 2010

How the Skilling Ruling Limits White-Collar Cases

Prosecutions for mail and wire fraud are a staple of white-collar crime cases, and many involve the deprivation of the “right of honest services.” In Skilling v. United States, the case brought by Jeffrey K. Skilling, Enron’s former chief executive, the Supreme Court narrowed the scope of honest services fraud, making it more difficult for prosecutors to pursue criminal cases against corporate executives for misconduct that does not involve lining their own pockets.

Under the court’s analysis, evidence that an executive had a conflict of interest or acted against the best interests of the company and its shareholders is now insufficient to make out a case of mail or wire fraud.

SKILLING v. UNITED STATES

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United States Outlaws Life Without Parole for Juvenile Offenders

Tuesday, May 18th, 2010

SUPREME COURT OF THE UNITED STATES

GRAHAM v . FLORIDA
certiorari to the district court of appeal of florida, 1st district
No. 08–7412. Argued November 9, 2009—Decided May 17, 2010

Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment ’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed.

Held:  The Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Pp. 7–31.

(a) Embodied in the cruel and unusual punishments ban is the “precept … that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States , 217 U. S. 349 . The Court’s cases implementing the proportionality standard fall within two general classifications. In cases of the first type, the Court has considered all the circumstances to determine whether the length of a term-of-years sentence is unconstitutionally excessive for a particular defendant’s crime. The second classification comprises cases in which the Court has applied certain categorical rules against the death penalty. In a subset of such cases considering the nature of the offense, the Court has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. E.g., Kennedy v. Louisiana , 554 U. S. ___, ___. In a second subset, cases turning on the offender’s characteristics, the Court has prohibited death for defendants who committed their crimes before age 18, Roper v. Simmons , 543 U. S. 551 , or whose intellectual functioning is in a low range, Atkins v. Virginia , 536 U. S. 304 . In cases involving categorical rules, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Roper , supra, at 563. Next, looking to “the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose,” Kennedy , supra, at ___, the Court determines in the exercise of its own independent judgment whether the punishment in question violates the Constitution, Roper, supra , at 564. Because this case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes, the appropriate analysis is the categorical approach used in Atkins, Roper, and Kennedy . Pp. 7–10.

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UNITED STATES SUPREME COURT CONSIDERS WHETHER A MIRANDA WARNING EXPIRES

Tuesday, 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. (more…)

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How does a murder benefit a gang?

Saturday, 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. (more…)

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

Monday, 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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OK FOR THE GOVERNMENT TO SET UP CHECKPOINTS AT NATIONAL PARK

Thursday, August 6th, 2009

In United States v. Fraire (9th Cir., 8/4/09, 08-10448) ___ F.3d ___

federal park rangers, who intended to stop hunting and the “illegal taking of animals in the park,” set up a checkpoint to briefly question drivers illegal hunting. The Fraire court okays the momentary checkpoint stop aimed at preventing illegal hunting, justified by a legitimate concern for the preservation of park wildlife and the prevention of irreparable harm. directly related to the operation of the park, and confined to the park gate where visitors would expect to briefly stop — is reasonable under the Fourth Amendment.

BOTTOM LINE: If you plan to hunt in the national park, plan on getting caught.

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