Articles Posted in General Information on Criminal Law

Published on:

by

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?

Continue reading
Published on:

by

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.

Continue reading
Published on:

by

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.

Continue reading
Published on:

by

Recently a man was convicted in Orange County California of murder. Essentially this Defendant was initially attacked by a group of gang members who chased him and threw beer bottles at him. In response the Defendant attacked the group who had initially assaulted him with a gun. He shot at the deceased and after wounding him, shot him again several times killing him. The issue for the jury became how far can one go in defending himself against an attack?

Self-defense is a right available to anyone in California. However, there are a few limitations. Usually, you can’t claim self-defense if you’re the one to start the fight. But, what if you don’t start the fight? In fact, what if you are simply attacked, but the person attacking you chose the wrong person to attack because it just so happens you have a gun. Can you shoot the attacker? The answer is probably not.

If attacked you don’t have to retreat. However, you have to use proportionate force to the assault being perpetrated on you. In other words you can only use the amount of force to defend yourself, that was used against you in the first place. If someone hits you with his fist you generally don’t have the right to use a gun in response. But, each case turns on its own facts. For example, if your attacker is much larger than you and you have a reasonable fear he is going to beat you to death or beat you until you are seriously injured you may very well be able to use deadly force to stop the attack.

Continue reading
Published on:

by

Petty theft, or a violation of Penal Code Section 484-488, is when someone steals an item or items of value when that item(s) doesn’t have a large dollar value. It used to be that if what was stolen was worth less than $400.00 is was clearly a misdemeanor violation, commonly called petty theft. If the value was more than $400.00 it became a violation of Penal Code 487 and a possible felony.

Recently, perhaps as a sign of inflation or a recognition that everyday items just cost more, the law has changed to increase threshold of felony grand theft to $950.00. If whatever is stolen is worth less than $950.00 than the charge will be a misdemeanor petty theft.

A common occurrence is when someone steals from a store, such as Nordstrom’s Department Store, the value can quickly exceed the $950.00 grand theft value. The District Attorney has the choice to file this case as a felony or a misdemeanor. Even though it could be a felony, it doesn’t have to be. The District Attorney, or whoever is the prosecutor, has the discretion to file a felony or a misdemeanor.

Continue reading
Published on:

by

Residential burglary occurs when someone enters the residence of another with the intent to steal or commit a felony inside the home. The “normal” burglary is one where the burglar enters the home by forcing some kind of entry. Entry into the home through a window or forcing a door open are both entries which establish, almost by common sense, the intent to commit a theft or some kind of a felony inside the house. These are “serious” crimes and are punishable under the “Three Strikes Law” as such. But, what happens when someone is home when the burglary happens?

Recently, a case came up where entry was made through a bedroom window. Once inside the burglar was in the process of stealing silverware from the kitchen when he decided maybe there were more valuable items to be found in the bedroom. When the burglar went into the bedroom he was shocked to find that a woman was in bed sleeping. He immediately left the home and was so shocked he didn’t even take the stolen loot with him. Does the fact that he didn’t know anyone was home make a difference? Add the fact that he left immediately and didn’t take anything with him and maybe the burglary didn’t even occur. Well, unfortunately for the burglar, the fact that he didn’t know someone was home and that he didn’t get any stolen property doesn’t make any difference at all.

The crime of burglary is established as soon as the burglar enters the home with the intent to steal. Even if he just walked in the front door, if he entered with the intent to steal, it’s a burglary. The big problem for the burglar who enters when someone is home, is that by definition it is a “violent” crime under the “Three Strikes Law”. When it comes to sentencing, the burglar must, except in unusual circumstances, go to State Prison. In addition, if he does go to State Prison he must serve 85% of whatever sentence he receives.

Continue reading
Published on:

by

Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was “How To Defend A First Time DUI”. Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn’t necessarily shared by the lawyers in the class because they don’t have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What’s a good settlement?

Continue reading
Published on:

by

Recently the Los Angeles Times ran an article about several Los Angeles County Sheriffs’ deputies who had their testimony rejected by a jury. The case involved the deputies testifying that a defendant possessed a concealed firearm.

One deputy in particular testified that he saw the defendant in a side yard run and toss the pistol onto the roof of a detached garage. the trouble is, a video surfaced that was shot by a witness to the event. The video didn’t show the defendant run or toss the gun. It completely contradicted the sworn testimony of the deputy.

The jury returned a not guilty verdict and said that law enforcement fabricated their testimony. In other words, the sheriff deputies lied under oath. The jurors wondered why the District Attorney went along with the obviously false story put out by the deputies.

Continue reading
Published on:

by

I recently had a case in which my client was charged with evading the police, assault on a police officer, and resisting arrest. The police reports read like a one man crime wave. The client sped away at a high speed from the police, failing to yield to the lights and siren. Once he was stopped he came out aggressively and acted in a manner trying to intimidate the officers. He failed to follow orders and when he did so it was only after being told numerous times.

The police got him out of his car at gun point and ordered him to the sidewalk. Once there he failed to get to his knees as ordered. In fact, he was ordered to get down on his knees three times. He refused. The officer was elbowed when he approached and tried to handcuff the client.

The only problem was, almost all of the report wasn’t true.

Continue reading
Published on:

by

Before 1997 if someone was injured by a defendant during the commission of a crime and died more than three years and a day after the crime, he could not be convicted of murder. Recently, a case came before the Court of Appeal that tested this assumption.

Two defendants, Robert Duston Strong and David Michael Knick were charged with murder because they shot a sheriff’s deputy more than 30 years before and he recently died of complications from his injuries. Meanwhile, the defendants had served time in prison for their crimes and completed their sentences for the crimes they were charged with at the time.

The legal question became: could the defendants now be charged with murder because the sheriff’s deputy finally succumbed to his injuries many years after the original crime?

Continue reading
Contact Information
5031 Birch Street, Suite 100
Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Law Offices of Rudolph E. Loewenstein
JUSTIA Law Firm Blog Design