07 Sep 2016
Vehicular Manslaughter – Penalizing Negligence
Ordinarily, if you’re negligent and someone was hurt you would be sued civilly and a jury could award the person hurt with money damages.
If a person is killed as a result of your negligence, you can be charged with manslaughter – a crime. The crime of vehicular manslaughter can be charged as either a felony or misdemeanor, depending on whether the person’s negligence rose to the level of gross negligence (felony) or not (misdemeanor).
The elements of Vehicular Manslaughter are:
1. A person was killed;
2. The death was caused by the defendant’s driving;
3. The defendant drove a vehicle in the commission of an unlawful act not amounting to a felony;
3. Defendant drove a vehicle in the commission of a lawful act which might produce death, in an
Gross negligence is bad judgment that rises to the level of recklessness that creates a high risk of death. In gross negligence the actions of the person evidence a conscious disregard for human life.
The punishment for vehicular manslaughter range from 2, 4 or 6 years prison if charged as a felony or up to 1 year in jail if charged as a misdemeanor. In addition, the person convicted will have their license revoked for 3 years.
Successfully fighting a vehicular manslaughter charge requires showing that the behavior of the defendant was not negligent. In felony cases it may be easier because all that is required to show is that the defendant did not act with gross negligence – ordinary negligence isn’t enough.
Vehicular manslaughter cases can also be fought by showing that the defendant’s actions did not cause the person’s death. There could be multiple causes to a traffic collision. In fact, the deceased driving may have contributed to the accident.
These cases are complicated and require bringing together witnesses, experts and lawyers to successfully defend. If you’ve been charged with vehicular manslaughter call (213) 479-5322 to discuss your case with an attorney who knows how to coordinate your defense.
As a result of Judge Goethals decision in Rodriguez, the Orange Cohttp://www.lawyerupla.com/orange-county-sh…y-scandal-part-2/unty District Attorney’s office went on a campaign to “paper” him. Papering is a way that D.A.’s can vindictively force a judge off the bench. Section 170.6 of the Code of Civil Procedure allows each side to challenge a judge and force him from the case. The case is then randomly reassigned to another judge. The O.C. public attornies used this against Judge Goethals on every case that came before him.This was a petulant and retaliatory show of force. All cases are tried by DAs, thus if no DAs are trying cases in front of Goethals he will be reassigned. It was a clear threat to toe the line.
The supervising judge told the DA to stop the blanket challenges, the DA appealed and the Court of Appeals recently ruled that the DA couldn’t be stopped from making their challenges – even though the Court of Appeals found that the practice was distasteful and that the law should be changed.
The most alarming part of the story happened at the beginning of the summer when heroic defense attorney James Crawford was attacked and beaten by a DA investigator in the hallway of the courthouse. Inv. Alley repeatedly punched Crawford after the two exchanged words. Crawford had been appointed by the court to represent a witness as a friend of the court, Alley asked him “who the fuck he was” and when he didn’t like the answer, beat up Crawford. Here are the disturbing pictures of Crawford after the attack.
The case was referred to the California Attorney General’s office who declined to file charges because there were conflicting stories about what happened. They ignored the fact that there was no conflicting evidence regarding which person got his ass kicked, that was Crawford. Alley complained of damage to his fist.
On top of all of this insanity, on 8/19/2016 there was a hearing in a case that parallels Rodriguez’s case. In the case of People v. Scott Dekraai, Dekraai is alleged to have committed mass murder in Seal Beach in 2011, Judge Goethals ordered the Orange County Sheriff’s office to release TRED information about informants in 2013. Which they reluctantly did. Judge Goethals also ordered that since the OC DA’s office was unable to proceed against Dekraai fairly that the entire office was recused. The OC DA’s office appealed that ruling.
In Dekraai, the OC Sheriff first said there was no evidence of informants, but later turned over some TRED evidence in 2013. After they turned over more informant evidence today, the judge said, “At best, I’m disappointed that these documents washed ashore more than three years after my discovery order,” Goethals said. “I’m also disturbed that these documents should have been disclosed a long, long time ago.”
The prosecutor on the case stated t that there are still more documents to be released. After the county counsel’s office cried about defense attorney Scott Sanders using the newly turned over informant information against Sheriff Hutchens and asked that they be kept secret, the judge gave county counsel a month to tell him why each of the each entry should remain hidden.
You can be sure, as soon as that information is released on Septemeber 19, I will let you know what happens!
23 Aug 2016
In the early 1990s, the OC Sheriff instituted a computer system to track county jail inmates called “TRED”. One part of TRED was the Informant Index. This Informant index is information that must be disclosed to the defense, particularly since law enforcement cannot put a snitch into contact with a represented defendant (Massiah v US). This Informant Index list was kept a secret from everyone outside of the Sheriff and D.A.’s offices until just recently.
This past year, as part of a Petition for Writ of Habeus Corpus on behalf of a defendant named Henry Rodriguez, the TRED Informant Index files were finally released. This was the result of two defense attorneys who would not give up on defending their clients rights: James Crawford and Scott Sanders. How they finally got them released and exposed a huge, illegal, lowdown scandal in the OC, is one heck of a story. And it’s still not over yet.
In 1998, a man named Henry Rodriguez was friends with Richard Tovar. Tovar was convicted of killing his pregnant girlfriend. The DA prosecuted Rodriguez for murder, for unclear reasons since his crime seems to be renting a boat or maybe disposing of the body. But they won a conviction in 1999. That conviction was overturned in 2003 because the cops violated Rodriguez’s Miranda rights. Rodriguez was re-tried in 2006. The DA had a big problem though: Rodriguez’s original confession was coerced so it couldn’t be used a second time. This time they needed actual evidence.
Their solution appeared in the form of Michael James Garrity. Garrity claimed to have heard Rodriguez tell him all the details of the crime when they were cellmates. He never testified in the first trial but appeared, conveniently, 7 years later, to secure a second conviction.
James Crawford, Rodriguez’s attorney smelled something fishy with Garrity and asked Judge Fasel for any evidence from the jail. At a hearing on that issue, the Orange County Counsel (representing the Sheriff Department) told the judge that the files Crawford was seeking were “confidential and investigatory and didn’t exist.” “They were never even written down,” the county counsel whined.
Fasal sided with the Sheriff Department and said that Crawford was on a fishing expedition. Rodriguez was convicted again, but Crawford knew something was up, rumors of an illegal snitch program had been around for years. And now evidence was confidential, investigatory and nonexistant all at once.
So Crawford reopened the case with a Petition for Writ of Habeus Corpus, on behalf of Rodriguez. His petition was heard by Judge Thomas Goethals. Finally, you had two honest men in the room.
Judge Goethals had some experience with jailhouse snitches. In 2013, a slam dunk case of a mass murderer in Seal Beach had been completely bungled when a DA had gotten greedy and used an illegal snitch. Judge Goethals ordered a small part of the TRED information disclosed, revealing illegal snitches in at least two other cases, (remember this is confidential, investigatory existent but non existent evidence so it was hard to keep track of how many cases, how many lives were ruined by this scam).
Goethals then recused the entire Orange County District Attorney’s office from trying those two cases because of the DA’s dishonesty with respect to the snitch program. That meant the whole OC DA’s office could have nothing to do with these cases, their own cases. Eventually the California Attorney General had to try the cases.
Cut to three years later, when – after exhausting all of his appeals – Crawford filed his Petition for Writ of Habeus Corpus on behalf of Rodriguez. Goethals orders the entire Orange County TRED Informant Index files released. Finally, 1200 pages are released, with assurances that this is the entire record. And lo and behold, they contain the “investigatory, confidential and nonexistant” files on Rodriguez and Garrity.
These files show that Garrity was an informant for numerous agencies, not just Orange County, and that he received benefits for his snitching, like lesser sentences. The Informant Index shows that the Sheriffs Office placed Garrity into Rodriguez’s cell and actually gave him a list of questions to ask. All this is highly illegal because of a federal case called Massiah vs U.S. This ruling says any evidence gained by an illegal snitch must be excluded from evidence. The records even show the DA’s and cops conscious decision not to disclose that the snitch was explicitly directed and compensated.
As part of the Habeus petition, Judge Goethals ruled that the discovery failures that occurred in his case prejudiced Rodriguez since the court believed that there is a reasonable probability that litigation related to his second trial, with the tainted snitch, would have produced a result more favorable to the defendant, had Rodriguez received this discovery before that 2006 trial.
How did the Orange County D.A. react to this scandal? Their entire Sheriffs department was corrupt and their District Attorneys were complicit in coerced and false evidence and this had been going on for years, if not decades? Read our blog in two weeks to find out the next chapter in this amazing story.!
“What is a gas chromatogram?”
Seems like a simple question, but it gets to the heart of who’s out there purporting to be a DUI Defense Attorney. Whether the person knows the answer shows whether DUI defense is what they do – or just another in a long list of things they advertise for.
The answer is:
A chromatogram is a graphic representation of the test that’s done by the cops to determine the accused’s blood alcohol content at the time of the test.
If the person who wants to be your DUI Defense Lawyer can’t answer the question, or says it doesn’t matter, you need to thank that person for their time and leave.
I was recently in Court fighting to get the Chromatograms for my client and I was the only one in the room who knew what a Chromatogram was! I had to explain what Chromatograms were to the Judge AND the Prosecutor. Other Lawyers were taking notes about chromatograms – because they didn’t know.
Judges and Prosecutors ask all the time: “Why do you need to see that?” because most other lawyers aren’t asking to see these essential test results.
Blood tests can be fought – ALL DUIs can be fought – and knowing what chromatography machines are and exactly how they work, is essential to that fight. Gas chromatography machines are NOT infallible. If you know where to look, you can find that the machine or the blood sample are probably contaminated.
Even if your DUI doesn’t involve a blood test, if it’s a refusal or a breath test, not knowing the answer to this question discloses that the person you’ve asked doesn’t really know what he or she is doing. Chances are they’re just saying what you want to hear, in order to get hired and they will just be going through the motions during your case. Chances are no matter how great what they say sounds (when they’re trying to get hired) you will end up pleading guilty to a DUI.
If your case does involve blood testing, the Lawyer who can’t answer your question will probably end up telling you, “It’s a blood test, there’s no way to fight that.” Without even looking at the chromatograms!
You’re going to end up spending thousands of dollars, even if you hire a cheap “Do Nothing” Attorney. It’s important to your future; you should know what to ask and know what you’re getting. Even if you settle for the guy who doesn’t know what a chromatogram is, you should know your Lawyer’s limitations.
To fight your DUI or if you hav eany questions, call 213-479-5322 or fill out the easy form at the right.
The big picture is if you are a non-citizen, you can now get a driver’s license and avoid fees and convictions for driving without a license.
20 Jan 2015
Walmart Partners Up With Lawyers In a Race To the Bottom In Legal Representation
Walmart has earned a reputation as the retail leader in the race to the economic bottom. For years they’ve negotiated the lowest prices for the goods they sell and for the services of those who toil at Walmart. A staggering number of Walmart employees and their families live below the poverty line and require public assistance to get by.
Walmart is able to do this because they have such huge bargaining power. The mega-chain is able to negotiate the lowest prices for goods because they buy in such high volume. Walmart is able to pay its employees low low wages because they are often the only employer in the area.
So now Walmart has teamed up with Legalzoom to provide Wills and Trust services and Axxess Law to provide onsite attorneys at their stores. Given their history in other areas of purchasing goods and services, I’m sure that they’ve negotiated really great deals for new and struggling lawyers to provide low cost legal services.
But is this in your best interest?
No. Choosing a lawyer is not buying a box of cornflakes. A lawyer that charges low, low fees has to take many, many cases and can’t give your case the attention it needs. A lawyer that must provide a wide variety of legal services (personal injury, contracts, bankruptcy, et c.) can’t devote his time to being outstanding at the area of law you need.
So you may choose to shop at Walmart for groceries because of price or variety, but it is not the place to shop for a DUI or criminal lawyer. Your LIBERTY is at stake!
A good defense is never cheap and a cheap defense is never good
16 Nov 2014
NBC News recently reported that CHP officers make game of stealing racy photos. CHP Officer Harrington of the Dublin area CHP was arrested recently for stealing photos from the cell phones of women he arrested. He would search an arrestee’s phone and then text the pictures to his friends – also members of the California Highway Patrol.
He was charged with two Counts of Computer Data Theft, a Felony. The two Counts stem from two separate instances when he sent the private photos from the arrestee’s phone to his cop buddies. The article describes the conduct as part of a game among the officers.
Officer Harrington says essentially he’s sorry that he got caught and fired and hopes he can move on with his life.
At least one of the cases where Martinez was arresting officer has been dismissed because of the charges against him.
At least one of my clients who was stopped by the CHP says that they took their phone and looked through it. If this is in fact part of a larger game among CHP officers, it has probably happened more than twice.
If you’ve been stopped or arrested by the CHP or any law enforcement agency, you should search your phone to see if there are any texts to numbers you don’t recognize. If you’ve been the victim of an invasion of privacy by CHP you can make a complaint here. Complaint procedures against local law enforcement should be on their websites.
If you need help because your privacy has been invaded by the CHP, call me at (213) 479-5322 to discuss your case more fully.
16 Nov 2014
This is an exciting development for people convicted of certain felonies.( I list them below.) Prop 47 allows reduction of felonies to misdemeanors. One of the most important things about this Proposition is it applies retroactively. This means no matter when you were convicted you can get your felony reduced to a misdemeanor. As you know, this effects your employment, voting rights, gun ownership and more. In addition, once you get your conviction reduced to a misdemeanor, you can have it expunged.
Expunged means it shows up on your record as a “dismissal after conviction”. So when asked, you can answer “No, I do not have any misdemeanor or felony convictions.” about the conviction. And you can do this for all felonies that fall under the list below.
But it doesn’t happen automatically, you have to take steps to get obtain your reduction. This is a process some people can do themselves but if you have any questions, I am here to help. I can offer advice, file your reduction or help you decide whether you need an attorney.
Here are the Felonies affected:
– Health & Safety Code Sections 11350(a) (Possession of Cocaine/Heroin, etc.), 11357(a) (Possession of Concentrated Cannabis) and 11377(a) (Possession of Methamphetamines).
– Penal Code Section 459.5 (Shoplifting where the person entered a business with intent to commit larceny during business hours and took property worth less than $950.) Unless also charged with petty theft or 2nd Degree Burglary.
– Penal Code Section 473 (Forgery (PC 470(a), 470(d), 475(a), 475(b), 475(c), 476) where the value of the check is less than $950.[DA cannot aggregate]) Unless also convicted of identity theft (PC 530.5).
– Penal Code Section 476a (Making bad checks where the value of the check is less than $950.[DA can aggregate]) Unless 3 or more prior convictions for PC 470, 475, 476 or 476a.
– Penal Code Section 490.2 (Grand theft (PC 487(b), 487(c), 487(d)(1), 487(d)(2), 487a, 484e(a), 484e(b), 484e(d)) where the value of the property is less than $950.)
– Penal Code Section 496a (Receipt of Stolen Property Valued at $950 or less).
– Penal Code 666/484 (Petty Theft with a Prior). Unless also suffered a prior felony conviction for theft or PC 368(d) or (e).
Anyone convicted of these offenses is eligible to have their sentence retroactively reduced from felony to misdemeanor UNLESS they have either a prior strike offense or are subject to PC 290 registration.
In Los Angeles, the process to obtain your reduction is as follows:
1. Fill out the form here.
2. Serve a copy on the District Attorney. Their office can be found in the same court where you go for Step 3.
3. File in Court where your case took place.
4. The District Attorney fills out their portion of the form and submits it to the Court.
5. The Court will then either (1) grant your request or (2) set the matter for hearing.
Remember, If you have any questions with obtaining relief under Proposition 47 or need assistance in filing your Prop 47 request for reduction you can contact me at (213) 479-5322.
23 Aug 2014
First off, the cops failure to read you your rights will not get a DUI case dismissed.
At DUI stops the fifth amendment and Miranda will possibly get your statements suppressed, if it is determined that you were in custody at the time the statements were made. This is unlikely in a DUI because of a US Supreme Court case called Berkemer v McCarty.
Berkemer v. McCarthy says that the questions a cop asks after a DUI stop are not part of a Custodial Interrogation.
The Berkemer case involved a stop where the cop asked 1 question: are you under the influence of anything?
The guy answered yes.
He got arrested.
The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions. In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The Court held the subject was not under the belief that he couldn’t leave. The Court further held that in this case, the questions were not intrusive.
If you are arrested and questioned, you must invoke your right against self-incrimination unequivocally. This means anything other than “I invoke my right against self-incrimination,” will not be treated as an invocation. So when arrested and questioned say, “I invoke my right against self-incrimination.”
The Fifth Amendment does not relieve you of your obligation to take the post-arrest DUI chemical tests.
If you are stopped and questioned pre-arrest, the Berkemer decision says that you’re not under arrest so your Fifth Amendment right doesn’t apply. I counsel that you should tell the cop, “Officer, am I free to go? If not, then I choose not to answer your questions.” Any answers you give the cop will be used to build a case against you. They are not trying to learn information so they can release you. They are trying to get information to get a conviction.
The recent California Supreme Court case of People v Tom shows the importance of unequivocally invoking your Fifth Amendment right not to answer cops’ questions. In this case, there was a traffic fatality, the Defendant left the scene, later the cops came to his house. They found him drinking. They arrested him and had him sitting around for three hours. During that time he never inquired about the person who was killed. Of course, none of the cops informed him why he was arrested or that there was a fatality. The Prosecutor commented on this in his closing argument. This is usually Griffin Error.
The Griffin Law means a Prosecutor cannot comment on the Defendant’s post-arrest silence. But the Tom court held that because the Defendant did not unequivocally invoke his right against Self-Incrimination the Prosecutor could comment about his silence
Merely remaining silent after being arrested will not be enough to invoke your right against Self-Incrimination. It cannot be said often enough, at DUI stops the Fifth Amendment and Miranda require that you unequivocally invoke your right against self-incrimination.
If you have an issue with the Fifth Amendment and Miranda please call me at 213-479-5322 to discuss this more fully.
22 Aug 2014
THE CHALLENGES OF DEFENDING SOMEONE ACCUSED OF DUI
AND DOING IT RIGHT
Here is the DUI interview I did with DUI attorney Mark Rosenfeld, Mr. DUI LA. It includes us talking about the challenges of DUI Defense and going through a recent DUI trial victory of mine. In the interview Mark and I discuss the common misconception that DUI cases are unwinnable. I describe a recent DUI trial victory to illustrate the point that DUI Cases are winnable with the right attorney. This is video is a good example of the issues in a DUI case as the case study involves, field sobriety tests, breath testing, blood testing, and issues of time of driving. After all, the State must prove that the accused driver was impaired and/or over .08% blood alcohol content at the time of driving. In this case, the defendant had to fight because of onerous immigration consequences related to travel to Canada. He was tested with three separate machines, the preliminary alcohol screening device, the Datamaster breath testing device and hi blood was analyzed by gas chromatagram. In the DUI interview I discuss how all three of the tests were flawed. If, after watching this DUI interview, you are ready to fight and win your DUI or you have questions about whether your DUI can be won, please call me at (213) 479-5322 to set up an appointment.