The holiday season can be a stressful time for people, especially when the economy is bad and people are depressed.  Los Angeles violent crime defense attorneys often see a rise in certain types of violent activities, as people are morbidly affected by the pressure to spend money they don’t have, or are depressed by a lack of family.  This holiday season saw two major tragic events define the city.

Los Angeles rang in the new year with at least five homicides and a fatal officer-involved shooting.  Vannaly Tim, 24, and her boyfriend, Sarith Em, 25, were shot outside their Signal Hill-area apartment. 

Em, an Iraq war veteran, and Tim went outside to move a car to avoid a parking ticket, and Tim’s younger sister, Debi So, heard six gunshots, the Long Beach Press-Telegram reported.

At first, So thought the shots were part of a New Year’s Eve celebration, but she later found Em shot several times in the back and lying in the street on top of Tim. One of the bullets went through Em and lodged in Tim’s chest.

In Panorama City, Los Angeles police fatally shot 41-year-old Saul Soriano, had been threatening his family with a gun and firing shots into the air early Thursday after his son complained about his drinking.

On Christmas Eve, a recently divorced 45-year-old man ran amok with guns and a homemade flame-thrower, killing his ex-wife and eight other members of her family, before killing himself.   Soriano had been confronted by a son about his drinking, Soriano’s sister-in-law, Iris Zuniga, told NBC4.   After the shooting, officers searching his car found an improvised grenade that was almost certainly homemade, Romero said, adding that it was safely detonated in place by a bomb squad.

Also during the holiday week:

• In Pomona, Adrienne Davidson, 46, woman told deputies she fatally shot her husband and surrendered at the sheriff’s Walnut station.
• At a party in the 3900 block of Avenida del Sol, off Coldwater Canyon Avenue, a young man was fatally shot at close range, according to Los Angeles police at the North Hollywood Station.
• In the Pico-Union district just west of downtown, a man was fatally stabbed in the 1200 block of West Eighth Street.

Violent crimes affect individuals, families and communities, and effective Los Angeles violent crime defense attorneys know the importance of protecting the accused from succumbing to the negative emotions surrounding such crimes.  People are often deranged, depressed and just lost mentally, which often leads them to commit crimes they wouldn’t ordinarily commit the other 51 weeks of the year.  When holiday parties include alcohol in the mix of circumstances, it makes for that many more problems.

If you or a loved one has been accused of a violent crime, contact a qualified and experienced Los Angeles violent crime defense attorney today!

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Being arrested for a DUI defense in Los Angeles is serious business. No one is immune from DUI charges, and that goes for celebrities, athletes and politicians.  Los Angeles DUI defense attorneys know that everyone from the Mayor of Los Angeles to a working stiff can be arrested, charged and prosecuted for DUI.

For example, Charles Barkley was arrested on suspicion of DUI early Wednesday morning.

An officer with a law enforcement task force that targets drunken driving saw the former NBA star run a stop sign around 1:30 a.m. Barkley declined to submit to a breath test but was given a blood test. The results weren’t immediately available.

After Barkley was processed, he was cited and released. He left in a cab. Authorities said there was nothing remarkable about Barkley’s arrest and that it is customary to release people after they’ve been arrested on suspicion of DUI.

“There was nothing unusual about how he was taken into custody,” said a representative. “He was treated exactly like we treat anybody else.”

Barkley was arrested in Scottsdale’s Old Town area, one of the trendiest spots in the Phoenix metro area. Barkley played 16 NBA seasons for the Philadelphia 76ers, Phoenix Suns and Houston Rockets, and played on the USA Olympic “Dream Team” in 1992 and 1996. He was an 11-time NBA All-Star and league MVP in 1993.

Most people don’t take DUI consequences seriously, and forget to hire experienced DUI defense attorneys for their cases. Los Angeles DUI defense attorneys can help in even the most difficult situations. The attorneys at Kestenbaum Eisner & Gorin LLP aggressively defend DUI charges both in court and at DMV hearings, by strategizing with clients to develop an effective defense. We want to know why the police stopped your car, how well you performed on the field sobriety tests, whether the officer completed a 15-minute observation period prior to the breath test, and if the machine had any history of malfunction. We specialize in developing a defense to DUI charges relying on the Breathalyzer Breath Test or a Blood Test by utilizing the science behind blood-alcohol evidence. Our law firm’s aggressive courtroom approach leads to charges being dropped or reduced when we can demonstrate that a traffic stop lacked sufficient legal cause, the breathalyzer machine malfunctioned, the alcohol absorption was insufficient, or other problems of proof exist such as the improper collection or preservation of blood after a DUI arrest.

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Drunk driving is a phenomenon that usually increases during the holiday season because people are out drinking at parties and police put up traffic stops to catch anyone with a Blood-Alcohol-Content (BAC) of .08 or higher. Being charged with DUI can seriously affect every area of your life for extended periods of time, and having a DUI charge on your record can create a ripple affect in your career.

Here are a few tips on avoiding DUI charges his New Years:

• Try to throw a party at your own home. No one has ever been charged with a DUI for being drunk in their own home.
• If you do go out, designate a driver who won’t drink. Police won’t be able to tab sober drivers with DUI.
• If you go out alone, or choose to leave a party early, contact a taxi-cab service. This holiday season, The Automobile Club of Southern California announced today that it will be offering free tow service to help keep drunk drivers off the road during the New Year’s holiday.
• If you can’t get a ride, try to attend an even near your home so you can walk.
• Make sure to eat plenty of food if you are consuming alcohol, consuming food keeps your BAC down.

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Rapper DMX, one of the most popular rappers of the 1990’s, plead guilty on multiple drug possession, theft and animal cruelty charges.

Specifically, DMX, whose real name is Earl Simmons, pleaded guilty to one count of animal cruelty, one count of theft, and one count each of felony possession of marijuana and a narcotic drug.  The 38-year-old rapper has been arrested several times in Arizona in the past year and missed several court dates.

Authorities alleged that DMX gave a false name and Social Security numberwhen being treated at a Scottsdale hospital in April. He was indicted on felony charges of theft and taking someone’s identity.  The animal cruelty charge, a misdemeanor, came from an August 2007 raid that Maricopa County sheriff’s deputies conducted at DMX’s Cave Creek home. Authorities investigating a report of animal abuse found three dead dogs, guns, ammunition and drug paraphernalia.

Drug or theft charges can be serious matters, ranging from misdemeanors to felonies, and can even count as strikes under California’s Three Strikes law.  A drug crime is a criminal act involving the manufacturing, trafficking, possession, or sale of an unlawful narcotic.  Unlawful narcotics include:  heroin, LSD, cocaine, crack, marijuana, methamphetamines, and unauthorized prescription medications such as OxyContin or Vicodin. 

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An estimated $2 million worth of jewelry and other belongings was stolen from the home of Paris Hilton.

The burglary occurred at Hilton’s Hollywood Hills home. The burglar, or burglars, got into the house through an unlocked door, according to LAPD sources.  According to detectives, a man wearing a hooded sweatshirt and gloves burglar-ed Hilton’s bedroom, took unknown property and fled, said Officer April Harding.

LAPD sources said they do not believe at this time that the burglary is connected to infamous burglaries that have beset the Westside and Hollywood Hills and cost many celebrities hundreds of thousands of dollars in jewelry and other valuables.   In those cases, the two –- and possibly three –- men, clad in black and wearing ski masks and gloves, burglar-ed more than 70 homes in areas such as Bel-Air, Beverly Hills, Holmby Hills and the hills above Encino, usually at night and often on weekends. The victims in those burglaries included former Paramount Pictures chief Sherry Lansing and her Oscar-winning director husband, William Friedkin, Clippers basketball star Cuttino Mobley, Duran Duran guitarist John Taylor and his wife, Juicy Couture President Gela Nash-Taylor, and country music stars Tim McGraw and Faith Hill.

A theft crime is a criminal act of taking another individual’s personal property without the individual’s consent.  In California, theft crimes are classified as grand theft or petty theft.  Petty theft is taking another person’s property (valued at below $400) without the person’s consent.  In most cases, petty theft is considered a misdemeanor.  Grand theft is taking another person’s property (valued at $400 or greater) without the person’s consent.  Many grand theft crimes are considered felonies; which means that the offender can be sentenced with over a year of jail time if convicted.

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Los Angeles Criminal Lawyers rely on the jury receiving the correct law in the form of “jury instructions.” If the judge makes an error in the instructions he or she provides, criminal defense attorneys frequently request a new trial if the jury returns a conviction. Why? It is of paramount important that the correct law is given to the jury before it reaches a verdict.

However, in a recent ruling, U.S. Supreme Court came to a different opinion. It held that the possibility that a jury, instructed on alternative theories of guilt,  may have found the defendant guilty on an erroneous theory because of a flaw in the instructions does not necessarily require reversal of the conviction. Reversing the Ninth U.S. Circuit Court of Appeals in a 6-3 per curiam decision, the high court ordered that the grant of habeas corpus relief to a convicted Northern California murderer be reconsidered.

The case involves the 1993 conviction and life-without-parole sentence of defendant for the robbery and murder of a cashier at a Bay Area Shell gas station.  Testimony at trial indicated that victim was murdered in the early morning hours of May 24, 1992, by a .45 caliber gunshot to the head.  The following day, the gas station cash register was found on the side of a road.

Shortly after the murder, defendant was arrested on an auto theft charge.  While in custody, he volunteered information about the crime and led police to some discarded .45 caliber cartridges which appeared to have come from the same gun used in the murder. His uncle said the defendant admitted the crime. Defendant claimed that it was the uncle who robbed the station and shot the clerk.

Prosecutors linked defendant to the crime  based on fingerprints found on the cash register and on a can of Coke found on the gas station counter, and noted that no fingerprints from the uncle were found. Defendant testified that he never touched a Coke can on the morning of the murder and that perhaps he handled the can on an earlier visit to the station.

Jurors found defendant guilty of first degree murder with a robbery special circumstance, but deadlocked as to whether he personally used a firearm or committed great bodily injury. On appeal, he argued, among other things, that as a result of an erroneous jury instruction, jurors may have incorrectly believed that he could be convicted of murder if he joined a robbery after the victim was killed by someone else.

The California Supreme Court agreed that a “late joiner” may not be convicted of murder, but said that any error in the instructions was harmless because the jury—by finding the robbery special circumstance—necessarily determined that Pulido’s involvement in the robbery began before the victim was killed. The Ninth Circuit, however, classified the error as “structural” and held that where a jury is instructed on multiple theories of guilt, one of which is improper, the conviction must be set aside unless it is an “absolute certainty” that the defendant was convicted on a proper theory.

The high court, however, said there was no structural error, and that the Ninth Circuit should have applied the standard set forth in Brecht v. Abrahamson (1993) 507 U.S. 619. That case—which involved prosecution comment on post-Miranda silence—held that error in the conduct of a trial will support the granting of habeas corpus relief only if it “had substantial and injurious effect or influence in determining the jury’s verdict.”

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Typically law enforcement must act within the purview of the U.S. Constitution to justify a search of a person, car, or home. Our firm’s Los Angeles criminal defense lawyers frequently contest a client’s search where we feel the police violated the constitutional requirements. A recent case, however, provides the police a broader basis for searching a car, even though the reason for the stop was illegal where the police are armed with an arrest warrant for the car’s passenger.

The California Supreme Court recently concluded that evidence obtained by searching a vehicle after arresting a passenger pursuant to a valid warrant was admissible against the passenger even though the underlying traffic stop that led to discovery of the warrant was illegal. The judges upheld defendant’s conviction and four-year sentence for possession and manufacture of methamphetamine.

Defendant was the passenger of a Buick that Sutter County Sheriff’s Deputies stopped in 2001 on the basis of expired registration tabs.  Although the deputy learned that there was a pending application for the registration’s renewal, he directed the driver to pull over in order to investigate the validity of the temporary operating permit taped to the car’s rear window. Testimony at a suppression hearing indicated that the deputy approached the car’s driver side and asked for the driver’s license, and upon recognizing defendant as a possible parolee at large and verifying that there was an outstanding warrant for his arrest, ordered him out of the car at gunpoint and arrested him for parole violation. 

During a search incident to the arrest, the deputy found an orange syringe cap on defendant, along with drugs and drug paraphernalia on the driver and in the back seat of the car. Defendant moved to suppress the drug evidence, arguing that the detention of the Buick and its driver constituted an illegal seizure of his person that tainted all of the subsequently discovered evidence. In denying the motion to suppress,a Sutter Superior Court Judge held that defendant was seized not at the point of the traffic stop but rather when the deputy commanded him to get out of the car and placed him under arrest. The defendant then pled guilty, subject to his right of appeal, and was sentenced to four years in prison.

The Court of Appeal reversed, reasoning that defendant was illegally detained as a result of the traffic stop and the stop itself was unlawful. But the high court, split 4-3, ruled that a passenger is not seized “as a constitutional matter” following a traffic stop because he or she need not submit to the officer’s show of authority.The U.S. Supreme Court, in a unanimous opinion, agreed with the court of appeal, saying no reasonable passenger would have thought himself free to leave under the circumstances.

The case was sent back to the state high court to consider whether there the search was valid based on the existence of the warrant.  In a subsequent opinion the court reasoned that “Case law from other state and federal courts uniformly holds that the discovery of an outstanding arrest warrant prior to a search incident to arrest constitutes an intervening circumstance that may—and, in the absence of purposeful or flagrant police misconduct, will—attenuate the taint of the antecedent unlawful traffic stop.”

The Court rejected the contention that allowing the search under these circumstances would encourage the police to randomly stop cars to run warrant checks on the occupants. While a search will not be upheld if it is “flagrantly or knowingly unconstitutional or is otherwise undertaken as a fishing expedition,” he wrote, here the deputy did not act pretextually or in bad faith. The jurist also emphasized that the search did not take place until after the existence of the warrant had been confirmed.

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When does a person qualify as a caregiver under Californa’s medicinal marijuana laws? The Supreme Court ruled he or she must have provided patients some previous other form of caregiving in order to qualify as a “primary caregiver” and be immune from prosecution for growing or selling the drug.

The California Supreme Court unanimously ruled that a Santa Cruz County man whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, was not entitled to a jury instruction on the affirmative defense - meaning that he does not get the jury to even consider it.

Defendant had been arrested in 2003 and charged with cultivation of marijuana and possession for sale after sheriff’s deputies—acting on a tip from a bank teller who said that suspect made several cash deposits of more than $2,000 each over a three-month period in small bills smelling strongly of marijuana—found 190 plants, plus other drugs and firearms, during a search of his residence.

Defendant, who had a medical marijuana recommendation for colitis, dysphoria, and depression, said that he smoked about four marijuana cigarettes per day for medicinal purposes. However, the investigators concluded the operation was primarily a for-profit commercial venture after defendant admitted he sold the drug to five other medical marijuana users.

At trial, Defendant asserted that California’s Compassionate Use Act of 1996—which provides partial immunity for the possession and cultivation of marijuana by qualified patients and their “primary caregivers”—shielded him from prosecution because as he was the other users’ primary caregiver insofar as he had consistently assumed responsibility for their health by providing them medical marijuana upon a doctor’s recommendation or approval.

The act defines a “primary caregiver” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”

The trial judge, despite granting defense request to instruct the jury that he was partially immune as a qualified patient, declined to instruct the jury on immunity as a primary caregiver after concluding that the evidence was insufficient to show defendant had provided such services, and the jury convicted him.

The appelate court explained that defendant was not entitled to the instruction because he had failed to “satisfy both halves [of the definition]—the ‘designee’ clause and the ‘responsibility’ clause.”Examining the latter, the justice explained that “a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”

Explaining that defendant’s evidence failed to demonstrate satisfaction of each of the three aspects, the revieiwng court concluded that the trial court had ruled correctly because the act “simply does not provide…protection where the provision of marijuana is itself the substance of the relationship.”

The court also rejected defendant’s argument that the 2003 enactment of the Medical Marijuana Program—which provides a defense to similar charges for those who give assistance to patients and primary caregivers in administering medical marijuana, and acquiring the skills necessary to cultivate or administer it—immunized his conduct.

“The Defendant, to the extent he assisted in administering, or advised or counseled in the administration or cultivation of, medical marijuana, could not be charged with cultivation or possession for sale ‘on that sole basis,’” she wrote. “It does not mean he could not be charged with cultivation or possession for sale on any basis; to the extent he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law.”

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A California court recently ruled on religion and marijuana defense law. The Court found that a man who sold marijuana from a Hollywood facility he called a church did not have a constitutional right to sell or possess the drug.

The Court affirmed the conviction on charges of selling marijuana and possessing marijuana for sale. Defendant had been placed probation on condition that he serve 90 days in jail.

Defendant, dubbed “The Hollywood Wizard of Weed” by the magazine High Times, was arrested in November 2006 after a police raid on Temple 420 in Hollywood. Officers seized nine pounds of marijuana along with scales, surveillance cameras, pay-owe sheets, bongs, pipes, Ziploc baggies, and packaging materials.

The narcotics officer who led the raid testified that she had visited the facility twice in the previous three months in an undercover capacity. She testified that defendant introduced himself as the owner of Temple 420, and said that it was a church in which members could buy marijuana.

Defendant said he planned to sell marijuana from vending machines. The front lobby had a cash register, a display of water bongs and pipes, and drug paraphernalia and related clothing, the officer said, adding that on her second visit, she filled out a membership application and purchased 3.5 grams of marijuana for $60.

Defendant testified that he was an ordained Universal Life Church minister who started Temple 420 as an online ministry. He said he was a pro-marijuana activist and that he was trying to bring religion to the “pot movement because there is a million people trying to legalize marijuana and a lot of them don’t have God in their lives.”

The defense sought to present evidence concerning the Religious Freedom Restoration Act of 1993. The statute prohibits enforcement of laws that burden the practice of religion in the absence of a compelling governmental interest, but a 1997 U.S. Supreme Court decision held the act unconstitutional to the extent it bars enforcement of state laws.

Strobel barred the defense from referring to RFRA, saying “it does not provide a defense in this case” and that the minimal probative value that the evidence might have was outweighed by the possibility of misleading the jury.

 The court of appeal held that the trial judge did not abuse her discretion in excluding the RFRA evidence, as well as evidence referring to the First Amendment. The justice noted that the temple’s standard membership agreement, which allegedly referred to RFRA, was not introduced in evidence, and that the defense was allowed to question the lead officer about the content, although the judge said it would be too confusing to allow questioning of the officer about whether she researched the information on the form.

The justice went on to reject the claim that the state Constitution protects the right to sell marijuana for religious purposes.

The Court distinguished cases that permit the use of controlled substances as part of sacramental rites. None of those cases, which dealt with the use of hallucinogenic drugs during religious ceremonies, involve sale of drugs, the justice said.

“Appellant presented no evidence that he was unable to practice his religious beliefs without selling marijuana or that he had to use marijuana to perform religious services,” the jurist wrote. Unlike the defendants in the cited cases, he added, “the ceremonial use of marijuana is not the sine qua non of appellant’s faith and religious beliefs.”

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Clearing a Los Angeles Bench Warrant always requires immediate action by a criminal lawyer and the client. The sooner the client is in court, the less likelihood the court will place him or her into custody. Our law firm has handled numerous misdemeanor and felony warrant matters, where the warrant was recalled and the client stayed out of jail. We present the client’s background, and mitigation evidence in court to justify the immediate release. 

Another way our firm defends a criminal warrant is to attack its legal validity in court, through a Serna motion which allows the defense to argue that the police and prosecution failed to seek the client out, and serve the warrant on him. Further, because of this untimely action, the defense is prejudiced and unable to present evidence of mitigation in court.

A recent California decision dealt with what constitutes untimely police action warranting a case dismissal.  The Court held that  the State of California’s failure to aggressively pursue disgraced political lobbyist Norman Hsu after he fled from justice 16 years ago before sentencing on a plea to a grand theft charge did not violate his right to a speedy trial.

Upholding defendant’s conviction and three-year prison sentence, the Court concluded that the former Democratic Party fundraiser was more to blame for the delay than the government, and rejected his contention that he should have been able to rescind his plea agreement because the judge who was required to sentence him under it retired eight years ago.

Defendant was charged in California in 1991 with 16 counts of grand theft after the collapse of an alleged “pyramid or ‘Ponzi’ scheme” in which he solicited investments in a fictional latex glove business, but used money obtained from later investors to pay earlier investors.

Defendant entered a no contest plea in 1992 in San Mateo Superior Court to one count of grant theft, with an admission that he took more than $100,000, under an agreement which called for a three-year sentence.

However, Defendant fled prior to sentencing, and spent a number of years in Asia before returning to the United States in the late 1990’s.

In 2003, with no effort to hide his identity despite his fugitive status, he began contributing to, and collecting contributions for, political candidates and other causes. By 2007, he had raised over $100,000 in “bundled” funds for Hillary Rodham Clinton’s 2008 presidential campaign, even though he was neither a party member nor registered to vote.

When Defendant learned that year that he was about to be arrested on a bench warrant from the 1992 charge, he arranged for his surrender in August and appeared in court and posted $2 million cash bail. However, when he once again failed to report for sentencing, another bench warrant issued, and he was taken into custody by FBI agents and extradited to California after falling ill on an Amtrak train in Colorado bound for Denver.

Back in California, Defendant moved to dismiss the charges on the basis that the 15-year delay in sentencing violated his constitutional rights, claiming that authorities could easily have found and arrested him during those years.

The court reasoned that, “While it is unclear how Hsu could have engaged in such prominent political activity without being detected, [his] flight to avoid being sentenced must be weighed more heavily than the ensuing failure of the government to apprehend him,” the judge wrote.

Pointing to the prosecution’s declaration that there are more than 100,000 arrest and bench warrants outstanding in California at any given time, the court opined that “the government should have discretion concerning how to allocate its finite investigative resources and…cannot be expected to pursue each of these 100,000 individuals with the effort it might expend to capture, for example, a serial killer.”

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