Criminal offenses and special allegations may be dismissed by way of a California Penal Code Section 995 Motion, if evidence at the preliminary hearing is insufficient to have the jury consider the charged conduct. Los Angeles Criminal Defense Attorney frequently use the 995 Motion to dismiss charges before a trial. In other words, a criminal defense lawyers prevails without having to go to trial on the charges.

A recent successful 995 motion was considered by the California Court of Appeal, after the trial judge granted the motion and the DA appealed. The Court of Appeal agreed with the trial judge’s decision that a three-year-old’s drowning death in a backyard swimming pool was not the result of criminal negligence by her mother.

Ruling that the charge was not supported by probable cause, Div. Two in an unpublished opinion affirmed Riverside Superior Court Judge Elisabeth Sichel’s decision to grant Xianlian Huang’s motion to set aside the information charging Huang in her daughter’s death.

Huang and her daughter were at Tsai-Yen Chou’s house for a weekly Bible study along with 10 to 12 other children who were playing in Chou’s backyard.

The yard contained a swimming pool, encircled by a six-foot tall fence, and three gates with self-closing springs led into the pool area.

Some of the children entered the pool area, and Chou later told detectives that she saw the children there through the rear window of the house.

A detective testified that Chou said she ushered the children out of the area and closed the gate herself. Chou testified that she asked the children to secure the gate.

The children came into the house to eat, and at around 7:30 Huang’s daughter asked Huang for help putting on her jacket and shoes so that she could go outside to play again.

One detective testified that Chou said Huang gave her daughter permission to go into the backyard, and Chou testified to this as well. Another detective testified that Huang had initially said she did not give her daughter permission to go back outside, but later told the detective that she did.

No specific adult was responsible for watching over the children, but adults were constantly walking between the kitchen, dining room, and family room.

At some point between 8:30 and 8:45 p.m., someone in the backyard screamed and Chou ran into the backyard where she saw Huang’s daughter’s body floating in the pool. Subsequent investigation revealed that the springs on two of the gates leading to the pool area were malfunctioning.

A detective testified that Huang had said she knew the gates to the pool did not work the night of the drowning.

Chou testified that she had been unaware of the gates’ failure.

A magistrate held Huang to answer for one count of felony child abuse in violation of Penal Code Sec. 273(a). However, Sichel found no probable cause that Huang had acted with the requisite “culpable state of mind” and granted Huang’s Sec. 995 motion.

Writing for the majority on appeal, Justice Jeffrey King explained that the “fundamental requirement” to affix criminal responsibility is actual or imputed knowledge that defendant’s act “tended to endanger life.”

There was no evidence that Chou was aware that the gates were not functioning properly prior to the drowning, King wrote, and based upon the facts known to Huang at the time her daughter entered in the backyard alone, there was no way the three-year-old could get into the pool area.

“While defendant obviously could have exercised more caution in the supervision of her daughter, her behavior did not rise to the level of criminal negligence,” King reasoned, noting that under the circumstances presented, it was not unreasonable to permit the children to play unsupervised in the backyard.

Justice Douglas P. Miller joined King in his opinion, but Presiding Justice Manual A. Ramirez dissented.

Noting Chou’s inconsistent statements regarding who closed the gate and a detective’s affidavit stating that the gates were rusted, painted over, and had to be pushed in order to close, Ramirez said that “any reasonable inspection by the owner or anyone else (including the defendant) would have revealed the problem.”

He also emphasized Huang’s admission that she was aware of the defects in the gate.

“No one, including the majority, can make this admission by the defendant ‘go away,’” he wrote. “It is there, it is part of the record, and it supports the magistrate’s ruling.”

Further, Ramirez wrote, there was “not one iota of evidence” that even if Chou had secured the gates or had one of the children do so, she communicated this information to Huang.

Even if she had, Ramirez continued, one of the other children could have opened a functioning gate and allowed the victim to enter the pool area, and Ramirez reasoned that this was an “inherent danger” in permitting the toddler to play in the yard unsupervised, with the other children.

“The fact that the defendant allowed her three year old to wander the house and yards, after dark, unattended for over one hour, without once checking on her…demonstrates her criminal negligence,” Ramirez concluded.

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Organized crime and gang activity are situations that police, the media and politicians often pay great attention to, and this leads to laws that can be extremely harsh for those accused of belonging to a gang. Many reports have surfaced of late about feet washing up on shore in the Pacific Northwest and Canada. The feet are alleged to be involved in some sort of gang activity or organized crime. Some authorities believe people who got on the “wrong side” of certain people had their feet cut off, and may have been killed.

In Los Angeles, gang activity is said to be increasing in volume. Authorities are targeting those individuals thought, or accused of, being involved with gang activity.

Gang crimes are quite varied, everything from graffiti to murder. Gangs are also often involved in drug activity in the communities they inhabit.

The penalties for belonging to, or being affiliated with, a gang come from both state and Federal authorities. The United States Senate passed the Gang Abatement and Prevention Act of 2007, which attempted to prosecute gang activity by defining new federal criminal offenses and boosting federal criminal penalties for gang crimes. While some criticize the law as vague and that it infringes upon local law enforcement, Congress is attempting to curb gang violence through more strict laws.

Attorneys defending those implicated in gang related crimes must have the kind of knowledge and experience that will allow them to understand the laws, the law enforcement philosophy and the nature of the justice system. The attorneys at Kestenbaum Eisner & Gorin LLP have decades of experience and have a track record of successfully defending clients from a variety of criminal charges.

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A Driving Under the Influence (DUI) conviction most likely bring with it some form of probation, whether or not jail time is involved. Probation usually gives a certain length of time in which the convicted must stay clear of similar convictions. For example, Khloe Kardashian, featured on E! Entertainment Television’s “Keeping Up With the Kardashians” reality show and daughter of Los Angeles attorney Robert Kardashian, had to report to jail for violating her probation in relation to a prior DUI conviction.

A judge earlier this month sentenced the 24-year-old to up to 30 days in jail after she admitted violating her probation by failing to enroll in an alcohol education class and clean up roadside trash.

Jail overcrowding forced officials to release her early, just as they have with inmates, including other well-known personalities such as Nicole Richie and Lindsay Lohan.

For those individuals not blessed with celebrity, the laws can be fierce for those with multiple DUI offenses. A second offense will lead to a license suspension of up to 2 years, 96 hours to 1 year in county jail, a third offense can equal license suspension of up to 3 years, 4 months to 1 year in county jail, a fourth offense is license suspension of up to 4 years, 6 months to 3 years in county jail or state prison. All offenses may also include probation, alcohol classes or counseling, and fines of up to $1,000.

The Los Angeles DUI attorneys at Kestenbaum Eisner & Gorin LLP are experienced with DUI charges, the science behind blood alcohol content and the complex legal system surrounding DUI charges.

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Internet downloading of child pornography has been a hot-button law enforcement issue in the past year. Los Angeles criminal lawyers are seeing more and more arrests, through the cooperation of local L.A. police department and federal agents.

Criminal defense attorneys should be aware that the U.S. Supreme Court has recently upheld a strict new federal laws that makes it a crime to send messages over the computer that offer or seek child pornography, even when no such pornography exists.

The 7-2 ruling gives prosecutors a powerful weapon to go after those who talk about child pornography online. It also appears to take away a defense for those who say the material they were discussing involves computer images, not depictions of real children engaged in sex.

These type of charges are very serious, carrying substantial prison time. Typical defense inquiries in these cases include 1)who actually downloaded the pornography and 2)who possessed the photos or video at the time of the police arrest. See Child Pornography Defense Attorneys

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A parole search is often used by police officers to justify a warrantless search of a car or home - when they know a subject is on parole. The search does not justify searching someone who is with the parolee, without separate legal justifications. Los Angeles criminal lawyers can file a Motion to Suppress Evidence, pursuant to Penal Code Section 1538.5, to argue to the judge that the stop of a car and/or the search of a house were unconstitutional. A successful motion typically means that the criminal case will be dismissed.

Here is an example of a recent case were the parole search was deemed to be unconstitutional by the Court of Appeal.

A police officer conducting a parole search of a vehicle driven by a male parolee lacked authority to search the distinctly female purse he found on the floorboard of the seat from which the car’s only female passenger had just exited, the Fifth District Court of Appeal hel.d

Reversing Wendy Nichole Baker’s conviction for possession of methamphetamine, the court held that Baker did not impliedly consent to her purse’s search when she failed to assert ownership over the purse and left it in the vehicle during the parole search.

The court also ruled that the officer had no reasonable basis to conclude that the male parolee had common authority over the purse, and instructed the trial court to grant Baker’s motion to suppress and allow her to withdraw her plea.

Baker was arrested after the car in which she was riding was stopped for speeding. The only passenger, she was seated in the front passenger seat with her purse at her feet.

When the officer approached the car, the male driver stated that he was on active parole. Confirming this information, the officer decided to search the car pursuant to the terms of the driver’s parole, and asked Baker to exit, which she did, without taking her purse or asserting ownership of it.

The officer searched the entire car and found nothing. He then searched the purse and found a folded tinfoil packet containing a small usable amount of methamphetamine.

Baker admitted the purse was hers after the officer also found her California identification card inside.

She pled no contest to a misdemeanor charge after Kern Superior Court Judge Charles P. McNutt denied her motion to suppress the methamphetamine, and was placed on probation for three years.

However, Justice Rebecca A. Wiseman wrote on appeal that McNutt should have granted the motion.

Wiseman first pointed out that there was no argument that probable cause had existed to conduct a warrantless search of the purse, and rejected the prosecution’s argument that the U.S. Supreme Court’s holding in New York v. Belton (1981) 453 U.S. 454—that the lawful custodial arrest of a vehicle’s occupant permits officers to contemporaneously search the passenger compartment and any containers—extends to a case where no one had yet been arrested.

She then rejected the contention that the driver’s consent, given in advance as a condition of his parole, gave the officer authority to search Baker’s purse.

Noting that the driver could only grant consent if he possessed joint access or control over the purse that would make it reasonable to recognize that he had the right to permit its inspection, Wiseman opined that there was no reasonable basis to believe the purse belonged to anyone other than the female passenger.

“[S]imply because a container is clearly designed for a person other than the parolee does not mean it may never be searched,” she wrote. “However, a purse is not generally an object for which two or more persons share common use or authority…. Here, there is nothing to overcome the obvious presumption that the purse belonged to the sole female occupant of the vehicle who was not subject to a parole-condition search.”

Wiseman similarly concluded that Baker’s failure to protest the search or assert a claim of ownership over the purse did not constitute implied consent, prove joint ownership and control, or suggest an intention to relinquish her ownership interest.

Noting Baker’s testimony that she “didn’t know” why she left the purse, Wiseman wrote:

“While the meaning of this statement is not entirely clear, it prevents any inference that Baker knowingly consented to have her purse searched.”

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In 1994, California enacted the infamous “Three Strikes Laws” which handed down mandatory and extended periods of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. Since that time, prison populations have increased 25%, showing they have not been any real deterrent to crime.

Under the Three Strikes Laws, the state punishes shoplifting and similar crimes as felony petty theft if the person who committed the crime has a prior conviction for any form of theft, including robbery or burglary. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, previous strikes for home burglary), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years). It’s almost as if the state uses prior convictions to imprison people they no longer want to prosecute or deal with, regardless of circumstances.

California also counts as strikes offenses in any of the other 49 states, as well as Federal crimes. Results of the Three Strikes Laws are incredibly unfortunate, both for the convicted and the tax payer. As of 2007, the California prison system, which is designed to hold 83,000, holds 170,000 inmates.

Throughout the years, various media outlets have investigated the gross negligence in the California prison system, as well as the affects the Three Strikes Laws have had on individuals and communities. California citizens have even attempted to pass laws adjusting the Three Strikes rules, however the propositions have failed in 2004 and 2000.

The attorneys at Kestenbaum, Eisner & Gorin, LLP are experienced with Three Strikes Laws, their consequences, and how to manage the system and situation that defendants find themselves in.

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Criminal Defense Attorneys in Los Angeles frequently defend drug offenses, for the possession, possession for sale, sales, and transportation of narcotics. Often the defense turns on who actually possessed the drugs, what was the intent of the possession, and what was the quantity of the controlled substance.

Drug possession charges could go in a number of different directions for the accused. The reason is that there are many types of drugs that could lead to the charge, and the law has different penalties for the amount of drugs found on the accused, or in his/her car/home. If the drug possession charge is coupled with another charge, such as firearms, drunk driving, or the possession of other dangerous weapons, then the charges would carry even larger penalties.

Recently, actor Andy Dick was arrested for both drug possession and sexual assault. Dick was at a restaurant where he allegedly pulled the top off of a 17-year-old girl and then was spotted urinating in public. After picked out of a curb-side line up and arrested, marijuana and prescription drugs were found in his vehicle.

Drug possession charges for marijuana are not as serious as they are for cocaine or a cocaine derivative (i.e. crack). Even possessing a gram of cocaine could lead to an instant felony charge and a few years in prison. Marijuana is seen as less deadly and addictive, and so penalties tend not to be as severe.

For cocaine though, the criminal sentencing could be severe. If you’re caught selling drugs, or possessing enough drugs to constitute “intent to distribute” then you could be looking at from 2 years to 25 years in prison, depending on the quantity that was seized by law enforcement, and further whether the case has state or federal jurisdiction.

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Pro Se representation, or representing yourself in court/acting as your own legal counsel, is highly controversial, to say the least. In most cases that receive media attention, a violent criminal with a questionable mental state defends himself/herself. However, the practice isn’t that uncommon, and it happens much more often on a small scale. Foregoing the use of an attorney in a criminal or civil procedure may seem like a cost-effective idea, but the question remains - is it a wise choice to a defend a criminal case in Southern California courtrooms?

In the case of actor Dylan McDermott, he’s chosen to represent himself during a divorce proceeding. The challenge for Mr. McDermott is, can he afford to make mistakes and lose ground on the settlement?

In a recent decision, WILLIAM M. HALLEY v. STATE OF MONTANA, in The Supreme Court of the State of Montana, a defendant claimed that he was denied his legal rights, in part due to interference of his attempted pro se representation. He claimed the attorneys that were appointed to him gave him ineffective counsel. He was found guilty in the case for which he defended himself, and was given a 40 year suspended sentence. So, in the end he greatly annoyed the attorneys in the case, the judge and filed several motions concering portions of the law he did not have a good understanding of, which all led to being found guilty.

There are many “apparent” reasons to defend yourself, cost, intelligence, seeming know how, but in the end a skilled and experienced attorney can not only take the burden off of your shoulders, but can navigate the legal waters in a way you can’t. Whether it’s a DUI matter, drug charge or some other felony or misdemeanor offense, an experienced criminal defense attorney may save you thousands of dollars in fines, years in jail and a damaged criminal record.

The ins and outs of the law, the ability to negotiate and plea bargain, and the experience of being able to defend against a knowledgeable prosecutor is invaluable. Hiring a plumber makes sense if a pipe bursts and hiring an attorney makes sense if the police arrest you.

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There is a stigma attached to individuals arrested and/or charged with Driving Under the Influence. People normally associate a DUI charge with uncontrollable drunks who live in bars and threaten the lives of everyone around them. However, it’s proven time and again that responsible individuals can make a mistake in judgment, or find themselves in the wrong place at the wrong time. This can lead to DUI charges.

An L.A. County Sheriff was relieved of duty because he’d been suspected of DUI following a traffic accident. The officer was an 18-year veteran and was speeding to the scene of a crime when he hit another car and badly injured those inside. A DUI investigation will surely follow, and this individual could suffer major consequences.

If you’re charged for DUI offense arrest, here are some tips:
- Dont try to talk your way out of it. Police officers have heard the same excuses hundreds of times, and will not likely release you
-You must take a blood or a breath test at the station; however, the law does not require you to submit to field sobriety tests, or to being interviewed by the police before you are taken to the station
- You will face harsher penalties if you are involved in an accident while DUI including jail, probation, alcohol counseling
- There is usually a great possibility that you will lose your license, and pay substantial fines
- You or your DUI attorney has 10 days to contact the California DMV (Department of Motor Vehicles) after you have been arrested for DUI. If you fail to do this, you will automatically lose your license on the 30th day after your arrest.

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Defending charges involving a life sentence is challenging, but not impossible. Experienced Los Angeles criminal defense attorneys, especially who are former trial prosecutors, often undertake the defense of charges involving murder, manslaughter, and other types of homicide.

Mark Everett, former star of such shows as “Pee Wee’s Playhouse” and movies like “Stand and Deliver” is wanted by authorities for killing his live-in girlfriend and abducting their three-year-old son. Everett, whose real name is Manuel Benitez, began to sell drugs after his child acting career tailed off and hid this fact, and other elements of his past, from his then girlfriend. He’d been arrested before on drug charges and on weapon charges, and is now being pursued for these crimes.

When individuals such as this former star compound matters by being arrested for unrelated crimes, it makes the job of the defense attorney that much more difficult. Judges and juries will rarely sympathize with a defendant if he demonstrates no remorse or flaunts an arrogant personality. An aggressive courtroom defense along with the assistance of jury consulting, a thorough defense investigation, and a relentless cross-examination of the state’s evidence may lead to a reduced offense or a complete acquittal.

Murder charges in California are covered under the state’s Three Strikes laws , if the individual has a prior record, and carry sentences of life in prison or the death penalty if the crime is severe enough. Everett has been on the run for years. He is down but not out. A aggressive courtroom defense may save him a life behind bars, if his criminal lawyers demonstrate that the evidence is insufficient to prove his guilt.

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