Los Angeles Criminal Defense Attorney

Archive for the ‘Sentencing’ Category

Proposition 36 Gives Inmates Serving Life In Prison A Chance At Reducing Their Sentence

Thursday, November 8th, 2012

On Tuesday November 6, 2012, almost 70% of California voters supported Proposition 36, which changes how California administers it’s three strikes law.  Under that law, a person convicted of three felonies is sentenced to life in prison.  Proposition 36 changes that process with the respect to the third strike.  Specifically, California law now requires the third strike to be a serious or violent felony in order to trigger the life sentence.

The most immediate impact of the new law is to give an estimated 2,800 inmates who are serving a life sentence a chance to petition a judge to have their sentence reduced.  The right to seek a reduced sentence is limited to those inmates whose third strike was not a serious or violent felony.  In other words, if you or someone you know is serving a life sentence under the old version of the three strikes law, and their third conviction was NOT for a violent or serious felony, they have a right to ask a judge to reduce their sentence.  The technical name of the request that is filed with the court is a “petition for recall of sentence.”

Proposition 36 includes an important deadline.  For inmates who are currently serving life sentences because of the old version of the three strikes law, the petition to “recall a sentence” must be filed on or before November 7, 2014. That’s two years from the date Proposition 36 went into effect.

What’s A Serious or Violent Felony?

California law includes two somewhat overlapping lists of felonies.  Section 1192.7 of the Penal Code lists 42 crimes that are defined to be “Serious Felonies.”  Section 667.5 of the Penal Code includes 23 crimes that are defined to be” Violent Felonies.”

For the purposes of Proposition 36, an inmate serving a life sentence under the three strikes law may seek a reduction of their sentence only if their third strike DID NOT involve a conviction for any of the following crimes.

Serious Felonies

(1) Murder or voluntary manslaughter;

(2) mayhem;

(3) rape;

(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;

(5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and

unlawful bodily injury on the victim or another person;

(6) lewd or lascivious act on a child under 14 years of age;

(7) any felony punishable by death or imprisonment in the state prison for life;

(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in

which the defendant personally uses a firearm;

(9) attempted murder;

(10) assault with intent to commit rape or robbery;

(11) assault with a deadly weapon or instrument on a peace officer;

(12) assault by a life prisoner on a non-inmate;

(13) assault with a deadly weapon by an inmate;

(14) arson;

(15) exploding a destructive device or any explosive with intent to injure;

(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;

(17) exploding a destructive device or any explosive with intent to murder;

(18) any burglary of the first degree;

(19) robbery or bank robbery;

(20) kidnapping;

(21) holding of a hostage by a person confined in a state prison;

(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;

(23) any felony in which the defendant personally used a dangerous or deadly weapon;

(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;

(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;

(26) grand theft involving a firearm;

(27) carjacking;

(28) any felony offense, which would also constitute a felony violation of Section 186.22;

(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;

(30) throwing acid or flammable substances, in violation of Section 244;

(31) assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;

(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;

(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;

(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;

(35) continuous sexual abuse of a child, in violation of Section 288.5;

(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;

(37) intimidation of victims or witnesses, in violation of Section 136.1;

(38) criminal threats, in violation of Section 422;

(39) any attempt to commit a crime listed in this subdivision other than an assault;

(40) any violation of Section 12022.53;

(41) a violation of subdivision (b) or (c) of Section 11418;

(42) any conspiracy to commit an offense described in this subdivision.


Violent Felonies

(c) For the purpose of this section, “violent felony” shall mean any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 12308, 12309, or 12310.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418.

Thus, if the third strike conviction was for a crime that is not on the list above, a petition can be filed to reduce the life sentence.


What Happens After a Petition for a Reduced Sentence is Filed?

Proposition 36 gives judges discretion whether to reduce a life sentence. It is not automatic.  Judges are supposed to look at three factors to determine whether the life sentence should be reduced: (1) The inmate’s criminal conviction history, including the extent of injury to victims, and how long ago the crimes took place; (2) The inmate’s disciplinary record and record of rehabilitation while in prison; and (3) Any other evidence the judge thinks is relevant  to determining whether a lower sentence would result in an unreasonable risk of public safety.

At this stage, it is hard to predict how judges will apply these factors.  Proposition 36, however, makes clear that an inmate cannot get a higher sentence as a result of filing a petition.  As a criminal defense lawyer in Los Angeles, I know that any inmate who thinks that they may be able to benefit from seeking a reduction of a life sentence under California’s three strikes law should contact an experience criminal defense lawyer to determine whether the changes made by Proposition 36 apply to them.


Modern Day Debtors Prisons in Los Angeles

Friday, July 6th, 2012

As a criminal defense attorney in Los Angeles, I sometimes feel that I live in an alternate reality.  On a weekly basis, I experience things that most well-educated and well-read people are confident don’t exist anymore.  One of those is debtors’ prisons.  Surely, you are thinking to yourself, they are a relic of the past.  And officially they are.  But in practice many court systems, including Los Angeles Superior Court, impose fines and penalties on indigent defendants and those who have been convicted of minor offenses that have the effect of imprisoning them for failing to pay their debts.

The New York Times reported on July 2 about for profit companies that help generate revenues for court systems by collecting fines.  The article, entitled, “Poor Land in Jail as Companies Add Huge Fees for Probation,” focuses on Alabama, and details the flight of Gina Ray, who was fined $179 for a speeding ticket, but three years later, after the imposition of a variety of fines and penalties, owes more than $3,000.

Three years ago, Gina Ray, who is now 31 and unemployed, was fined $179 for speeding. She failed to show up at court (she says the ticket bore the wrong date), so her license was revoked.

When she was next pulled over, she was, of course, driving without a license. By then her fees added up to more than $1,500. Unable to pay, she was handed over to a private probation company and jailed — charged an additional fee for each day behind bars.

For that driving offense, Ms. Ray has been locked up three times for a total of 40 days and owes $3,170, much of it to the probation company. Her story, in hardscrabble, rural Alabama, where Krispy Kreme promises that “two can dine for $5.99,” is not about innocence.

It is easy to dismiss what happened to Ms. Ray as a by-product of living in Alabama.  But this is also a problem throughout California and in Los Angeles in particular.  Faced with budgetary pressures, state and local governments are increasingly turning to fines and penalties as a way to finance court systems.  A report from the Brennan Center for Justice entitled, “Criminal Justice Debt: A Barrier To Reentry” details disturbing practices in 15 states including California.  For example, California Penal Code section 1214.1(A) authorizes courts to impose a $300 civil assessment for people who fail to appear in court or who fail to pay a fine ordered by the court.  Los Angeles Superior Court imposes this civil assessment.

If you’re wondering about the wisdom of imposing fines on poor people for their failure to pay existing fines, you aren’t alone.  Unfortunately, this isn’t a question of sound public policy or wisdom.  Too often, a financial incentive exists to create a cycle that makes it hard for the poor to escape the criminal justice system.  The New York Times article describes Judicial Correction Services, Inc., a Georgia-based company that, according to its website, helps provide courts with “a comprehensive solution to recidivism or just a boost in the fine collections.”

The company claims but there efforts impose costs on tax payers, but this seems to be true only in the narrowest sense.  Much of the fines imposed on Gina Ray were payable to this for profit company. So what do you suppose happens when people faced with ever increasing fines have to decide whether to decide whether to pay their fines or the child support obligations?  Who bears the cost of that?  The community at large, which, of course, includes tax payers.  And what happens when people can’t pay their debt burden.  Some, as outlined in the Brennan Center report, “choose” to go to prison as a way of paying off their debts.

People who are on probation are faced with a cycle of fines and penalties that can land them in prison. Yes, this is really going on in the United States in 2012.


Getting Your Gun Rights Back After A Felony

Wednesday, May 30th, 2012

As a Los Angeles criminal defense lawyer, I know that federal law makes it very difficult for a convicted felon to possess or use a fireman.

That’s what former Congressman Randy “Duke” Cunningham found out the hard way.

Mr. Cunningham is not a sympathetic figure.  He was elected to Congress 8 times.  For some, that by itself is reason not to like him.  But what really sets Mr. Cunningham apart is that in 2006 he was convicted in federal court of accepting $2.4 million in bribes and evading more than $ 1 million in taxes.  For his actions, he received an eight year sentence, which he has been serving in federal prison in Arizona.  It is hard to overstate the extent to which Mr. Cunningham ruined his reputation.  One book that chronicled his demise refers to him as “History’s Most Corrupt Congressman.”

Mr. Cunningham recently asked the judge that sentenced him to restore his right to carry and use a gun. He wants to enter shooting contests and hunt after he is released from prison.

In a letter to District Judge Larry Burns, Cunningham said that he will be 71 when he’s released from prison in December to a halfway house in Little Rock, Ark., and that he has cancer. As a convicted felon, he is barred from possessing firearms.

“I flew aircraft that could disintegrate your building with a half-second burst and now can’t carry a .22-caliber,” wrote Cunningham, a decorated Navy pilot in the Vietnam war. “Pls help me your honor.  I don’t have much left but this little thing is a big thing to me.”

There is every reason to believe that Mr. Cunningham is not likely to use a gun to commit a crime.  I take him at his word when he says he will live quietly in Arkansas with his 99 year-old mother.

But that is not how federal law treats convicted felons who want to get their gun rights back.  Judge Burns responded to Cunningham’s letter by noting that he lacks authority to restore his gun rights, even though the United Supreme Court has recognized that the Second Amendment confers a personal right to bear arms.

I haven’t seen the text of Judge Burns’ letter, but his interpretation of federal law appears to be sound.  Specifically, 18 USC 922 (g)(1) makes it pretty clear that if you are convicted of a federal felony, no guns for you.

18 U.S.C. § 922(g) prohibits specified categories of persons from shipping, transporting, or receiving any firearm or ammunition.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person–

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

Courts have interpreted this language to mean that you can be denied the right to have a gun even if you served less than a year in federal prison.  Your gun rights will be denied if you were convicted of a felony that carries a maximum sentence of a year or more, even if you actually served less than a year.  Given that a vast array of federal crimes are subject to prison sentences that exceed one year, in practice, a majority of people who are convicted of federal felonies are permanently deprived of their gun rights.

My guess is that the many people aren’t troubled by this deprivation of a constitutional right.  But they should be.  Many felonies, such as those that Mr. Cunningham committed, did not involve violence or even the threat of violence.  So why should someone who serves his or her time in prison forfeit their gun rights forever?

Still unconvinced?

Would your opinion change if the constitutional right in question was not the right to carry a gun but the right to vote?

The unfortunate fact is that many thousands of people have lost their right to vote because they were once convicted of a felony.

That is too high a penalty.  Mr. Cunningham may have set a new standard for political corruption, but he and other felons who have served their time should not be permanently deprived of their constitutional rights.


Medicare Fraud Arrests in Los Angeles

Thursday, May 3rd, 2012

The feds are getting serious about Medicare fraud.

More than 100 people have been charged in connection a Medicare fraud conspiracy that is alleged to span eight cities. Eight of the suspects are in Los Angeles, including two doctors.

According to news reports, more than $20 million in fraudulent medical expenses were billed just by the defendants in Los Angeles:

“All told, 108 doctors, nurses and other healthcare providers from around the nation were charged. In Los Angeles, authorities said defendants had filed $20 million in false claims.

Bolademi Adetola, owner of the Latay Medical Services company in Gardena, was charged with billing Medicare for power wheelchairs that never were purchased. The Greatcare Home Health group allegedly paid “kickbacks” to recruiters to find “patients” who were in good health, and then arranged to have doctors knowingly write phony prescriptions for them.

In addition, [two doctors]  were among four individuals connected with a Southern California medical care group that authorities say billed Medicare for feeding tubes for patients who did not need them.”

The allegations described above may sound extreme, but as a criminal defense lawyer, I can sssure that they are fairly typical for Medicare fraud cases.  Medicare fraud is a specific form of lying.  It is motivated by a desire to obtain reimbursement for medical expenses to which one is not entitled.  One common way to do this is to submit claims for medical procedures or services that were not performed.  Another involves paying third parties to find patents who then seek medical treatments that they don’t need.  A third involves submitting claim forms that identify a higher-cost service than was actually performed.

Medicare is a program that is administered by the federal government. Medicare fraud cases, unlike the vast majority of crimes, are therefore handled in federal court, which has its own rules, judges, prosecutors, and juries.  That’s why it’s imperative that you work with a lawyer who is experienced in defending criminal cases in federal court.

Unlike many criminal cases, Medicare fraud cases can also be document intensive.  Prosecutors often rely on written evidence –the claim forms submitted to Medicare—to try to prove guilt beyond a reasonable doubt.  In a case with more than 100 defendants, prosecutors may try to get lower-level individuals to testify against perceived ring leaders.  It is also possible that law enforcement may have obtained recording of certain conversations.  Thus, when defending a Medicare fraud case, particular attention needs to be given to the evidence that the prosecutors use with respect to every claim submitted to Medicare.

The penalties for Medicare fraud can be severe.  If someone is found guilty of intentionally providing false information in violation of The False Statements Act (18 U.S.C. 1001), they can face up to five years in jail as well as a sizeable fine.  Under the federal sentencing guidelines, the prison time can be higher depending on the amount of loss.  Likewise, the Social Security Act contains an anti -kickback provision, which makes it a felony to pay kickbacks, refunds, or bribes to seek Medicare reimbursement. Penalties for violating the anti-kickback provision include up to a five-year prison sentence and up to a $25,000 fine. People charged with Medicare fraud may also be charged with violating the federal wire and mail fraud statutes, which carry their own prison sentences and fines.

Given the number of people arrested in this particular case, it is likely that the prosecutors will be seeking extremely long prison sentences against the people who they perceive to be the ”big fish.”


Plea Bargaining Errors Can Now Be Challenged

Wednesday, March 21st, 2012

The United States Supreme Court has established a new important constitutional remedy–to challenge the results of a plea bargain that was accepted or rejected because of bad legal advice.

The Supreme Court today decided two cases that define when and how plea bargain errors can be challenged.  In Missouri v. Frye, the Court decided that the constitutional right to receive a competent legal defense also applies to the plea bargaining phase.  Thus, when a lawyer representing a criminal defendant acts incompetently when advising whether to accept or reject a plea bargain, the accused’s constitutional rights have been violated.

The Court’s decision in Lafler v. Cooper shows how judges should in the future handle lawyers who are incompetent in advising their clients about plea bargains.  Anthony Cooper was charged under Michigan law with an intent to commit murder, possession of a firearm by a felon, and possession of marijuana. The prosecuting attorney offerred to drop some of the charges in exchange for Cooper pleading guilty to charges that brought with them a prison sentence of between 51 and 85 months.

Cooper’s defense attorney advised against accepting the plea bargain. The lawyer believed that the prosecution couldn’t prove an intent to murder because Cooper didn’t point his gun above the waist of the person he shot. Cooper accepted his lawyer’s advice and his case proceeded to trial, where he was found guilty on all the charges.  Cooper was sentenced  to a mandatory minimum prsion sentence of  15-30 years.  Under this sentence, Cooper will spend at least twice as many years in prison as he would have under the plea bargain he rejected.

Although the Supreme Court’s decision in favor of Cooper was close–a 5 to 4 vote–it’s clear that Cooper’s lawyer acted incompetently.  His belief that intent to murder requires that the gun be pointed above the waist was simply wrong.  The difference between the judges is what they decided to do about this mistake. Four Supreme Court Justices concluded that Cooper was out of luck because he had a fair trial.  But a majority of Justices decided that Cooper’s constitutional rights were violated.

Thus, the Supreme Court decided that, when a lawyer acts incompetently in connection with a plea bargain, the accused may be able to get the benefit of the original plea bargain offer.  The Court did not spell out how all cases involving plea bargain mistakes should be handled.  When you can show that a lawyer acted incompetently, and that there is a reasonable chance that the accused would have accepted the plea bargain and the judge would have approved it, a judge has wide discretion as to how to proceed. It appears that a judge can order the prosecutor to re-offer the plea bargain that was previously rejected.

What does this mean for people who are involved in the plea bargain process?  First, make sure you are being represented by someone who is experienced and knows what they are doing. This is yet another example why it’s critical to hire an experienced  criminal defense lawyer.  Second, if you or someone you know believe that you accepted or rejected a plea bargain in Los Angeles or in Southern California that was based on a clear error that was made by a criminal defense lawyer, you may be able to get the benefit of the original plea bargain that was offered.  The Supreme Court’s decisions do not mean that plea bargain mistakes will always be fixed.  Overturning a criminal conviction is always a long and difficult fight that is rarely succesful, but now you at least have a chance to fix plea bargain mistakes made by lawyers.



PCP Arrests In Los Angeles and Culver City

Saturday, February 18th, 2012

The Los Angeles Times is reporting that two individuals have been arrested in Los Angeles County in what law enforcement officials are describing as a huge PCP operation.

PCP is the acronym for the drug  1-(1-phencyclohexyl) piperdine.  It’s chemical name is more commonly known as phencyclidine, and outside of chemistry labs and courts of law is known as Angel Dust, Supergrass, Boat, Tic Tac, Zoom, or  Sherm.

This would be an usually large amount of PCP for a single arrest.  To put 130 gallons in context, California law provides various quantity-based sentencing enhancements for the possession and manufacture of PCP.  Thus, for example, under California Health  and Safety Code Section 11370.4(b), three years are added to a sentence if the amount of PCP exceeds 30 liters, or roughly 8 gallons.  Given the amounts of PCP that are alleged to be involved here, and given that California law prohibits the sale, possession, transportation and manufacture of PCP, as well as the manufacture of certain chemicals that are thought to be precursors of PCP, these are very serions charges.

The most unusual aspect of the arrests in Los Angeles and Culver City is the alleged amount of PCP involved.  The LA Times story, written by Sam Allen, indicates that 130 gallons were seized.  It is important to remember that this Los Angeles Times story was based entirely on information supplied by police or prosecutors, they have an interest in painting the most extreme and damaging picture of the defendants as possible.  In other words:   Don’t believe everything you read.

More facts in this case will come out and those arrested should be presumed innocent.



Arrest in 50 Hollywood Arson Fires

Sunday, January 8th, 2012

Harry Burkhardt has been charged with setting more than 50 fires that, over the past week, unnerved much of Hollywood.

The arrest of Mr. Burkhardt has caused his high-profile case to take an unexpected twist.  The alleged arsons might be connected to the legal troubles facing Mr. Burkhardt’s mother, Dorothee.  She has been involved in a long-standing effort by federal prosecutors to extradite her to Germany to face fraud charges.

The Los Angeles Times’ website described the relationship between mother and son.”

For months, authorities scoured West Hollywood, carrying a photo of a squat, green-eyed woman through a bustling hive of Russian-language social clubs and cafes selling borscht and vareniki dumplings. She was Dorothee Burkhart, a fugitive wanted on a host of fraud charges in Germany.

Dorothee Burkhart was eventually arrested here and, last Thursday, she was in a courtroom for a hearing to extradite her to Frankfurt to face the charges.

Within hours, an arsonist began setting fires across a wide, significant portion of Los Angeles in a four-day assault that caused millions of dollars in damage and left many residents on edge.

On Tuesday, authorities were investigating the relationship between the son and mother — a relationship that appears to be mutually protective, fraught with legal troubles and laced with virulent anti-American sentiment.

These four short sentences and the rest of the LA Times story highlight several underappreciated aspects of what it means to defend criminal charges in the Internet age.  Notice, for example, how Dorothee and her son are painted as personally strange and a threat to our way of life.  This is exactly the kind of imagery that can make it especially hard for criminal defendants to get a fair trial.  The Times’ story is understandably short on details.  At this point, it’s to be expected that no one knows exactly what lead to rash of fires, and to what degree, if any, Mr. Burkhardt is involved.  What is clear, however, is that a good lawyer representing Mr. Burkhardt would, within the ethical limits imposed on attorneys, try to combat the image that has been created that he is some sort of foreign menace.

Dorothee’s predicament highlights another all too common problem—the difficulties faced by defendants who may be suffering from mental health issues.  It appears that Mr. Burkhardt was helping his mother combat the extradition efforts.  And it also appears that she was either distraught or mentally disturbed when he wasn’t in court to assist her.

By Tuesday, Harry Burkhart, a German national who had lived in California for several years, had been dubbed the “Hollywood Feuerteufel” by the German media: the Hollywood Fire Devil. Booked on arson charges, he was being held without bail. And his 53-year-old mother, coincidentally, was back in court fighting her extradition, and appeared disoriented without her son at her side.

“He should come into the court,” she insisted to the U.S. marshals and other law enforcement agents in the courtroom.

She grew more agitated when the hearing began in front of U.S. Magistrate Judge Margaret Nagle.

“My first question is: Where is my son?” Dorothee Burkhart shouted. She said her son was mentally ill, adding: “What did you do to my son? Where is he?  Dead?”

“I’m not here to address anything related to your son,” Nagle replied. The judge assured her: “I’m sure he has not disappeared.”

While extradition hearings are relatively uncommon, criminal charges often do implicate the immigration status of the person arrested.  This is yet another aspect of defending criminal charges.  Too often, the criminal charges are handled independently of the immigration issues, with tragic consequences.  The court system is full of stories of defendants who were advised to plead guilty to a lesser charge, only to later find out later that the conviction triggered deportation proceedings.

Perhaps the saddest element of this story is that Dorothee Burkhardt is representing herself.  She apparently turned down the assistance of a public defender on the dubious grounds that, “I don’t want an attorney from this government.”  In today’s world, arrests can in the blink of an eye ruin reputations, and seemingly minor fraud charges can in a few hours garner international press attention.  That in turn means that being an effective criminal defense lawyer may involve more than just defending the specific criminal allegations filed against a client.


County Jail Felony Sentence is Not Probation

Sunday, October 23rd, 2011

There are many questions about California’s criminal justice realignment plan.  The cornerstone of this plan is the restructuring of California’s sentencing laws.  As of October 1, 2011, most “non-strike” offenses will be served in county jail rather than state prison.  However, people should not mistake these “county jail felonies” for probationary sentences. Here’s an example:

Let’s say someone is convicted of possession for sale of methamphetamine in violation of Health and Safety Code Section 11378.  Under realignment, there are two sentencing options:  1) A sentence of 16 months, two years, or three years in county jail OR 2) Probation which may include time in the county jail.

This distinction between the two options is important.  Until now, county time on a felony was often the part of a probationary sentence, now both a sentence to a county jail felony and a probationary sentence can both include county jail time.  However, if a person is sentenced to the county jail felony and not probation, he or she will suffer many of the same collateral consequences of being sent to state prison. The two most significant of these consequences is that a county jail felony counts as a “state prison prior” in any future felony cases and county jail felonies are not eligible for dismissal under California Penal Code 1203.4 (commonly called “expungement”).

Defendants and criminal defense lawyers must be very careful to understand that just because someone is sentenced to county jail, the sentence is not probation unless the judge specifically designates the county time as a term of the probationary sentence.

If you or a loved one have questions about criminal justice realignment call a qualified criminal defense attorney, Jerod Gunsberg is available for consultations at (310) 210-0744.


Big Changes in California Sentencing Laws Coming October 1

Monday, September 12th, 2011

Humongous changes coming in California’s sentencing laws, the big thing is that almost all non-strike and non-PC 290 registration felonies can now be served in county jail instead of state prison.   Attorney Garrick Byers, earns his self-proclaimed  title of “statute decoder” for his in-depth-yet-easy-to-understand overview of this complex new sentencing structure.


Johannes Mehserle Sentence in Oscar Grant Shooting Explained

Sunday, November 7th, 2010

If you are reading this, you are likely aware that Los Angeles County Superior Court Judge Robert Perry sentenced former BART police officer Johannes Meshserle to two years in a California state prison for the killing of Oscar Grant on an Oakland train platform.  What follows is a simple factual explanation of how this sentence was arrived at under California law.   This is not an editorial on whether we believe this is the right sentence or wrong sentence, there’s plenty of other people out there doing that.  These are just facts as to how and why the sentence is what it is.

The Conviction

In criminal trials, juries don’t decide penalties they only decide guilt or innocence (there are exceptions, like in death penalty cases). In fact, a criminal defense attorney is not supposed to mention sentencing or punishment to the jury at all during trial.  If a defendant is convicted, the attorneys usually return to court at a future date to file briefs and make arguments as to the appropriate sentence.  The judge then applies California’s determinate sentencing law to trial evidence, the defendant’s criminal history, and the attorney’s arguments when deciding the proper sentence.  In certain situations, the judge does have the discretion to set aside the jury verdict and impose a sentence he or she believes to be in the interests of justice.  The defense may also file a motion asking the judge to order a new trial with a new jury.

In the Mehserle case, a Los Angeles jury convicted Mehserle of involuntary manslaughter in violation of California Penal Code Section 192(b), the jury found that even though Mesherle acted “without malice” he acted “without due caution and circumspection” which is far different than voluntary manslaughter, in which the jury would be required to find that Mehserle acted “without malice” but acted a “upon a sudden quarrel of heat of passion” (for those playing along at home, check out California Penal Code Section 192(a)).  The jury also found that the allegation that Mesherle personally used a firearm in the commission of the offense to be “true” (California Penal Code 120225(a)).

The Potential Sentence and The Actual Sentence

A conviction of involuntary manslaughter carries a sentence that can range from probation to a state prison sentence of two, three, or four years.  Since Judge Perry denied the defense’s request for probation, Judge Perry then had to decide whether Mehserle would get two, three, or four years in state prison.  Under California’s determinate sentencing laws, the “presumptive” sentence is the mid-term, which in this case is three years.  A judge may consider mitigating factors in favor of low term, or aggravating factors in favor of high term.

Here, Judge Perry looked at numerous factors including video evidence presented at trial in which Mesherle appeared shocked and deeply distressed immediately after realizing he had used his firearm and not his taser and shot Oscar Grant in the back.  There were two witnesses who both said that they heard Mehserle threaten to use his taser on Mr. Grant immediately before the shooting.  Mehserle took the stand in his own defense and testified that not a day went by when he didn’t think about what he had done to Oscar Grant.   This evidence likely played a large part in convincing the court that this was an accidental shooting which merited the low-term of two years.

As for the ten year enhancement for personal use of a firearm, Judge Perry found that he had made a mistake when instructing the jury on this enhancement.  For a jury to find it “true” that the defendant personally used a firearm in the commission of a crime to be, they must find that the defendant intentionally used the firearm.  Judge Perry did not believe he accurately instructed the jury on this point and felt that had he done so, in light of the evidence presented at trial that this was an accident; any reasonable jury would have decided that this allegation was “not true.”  The 10 year firearm enhancement was then set aside (or dismissed).

Why Mehserle Will Only Serve 7 Months

Under California law, most sentences are served at 50% time.  The exceptions are serious and violent felonies under California’s “three strikes” law in which, depending on the circumstances, prison terms can be doubled and served at 85%.  Involuntary manslaughter is a “serious” felony but not a “violent felony” so it is not a strike, this means that Mehserle will only serve 50% of his time, that means 1 year instead of 2.  At the time of sentencing, Mehserle has been in custody for 146 days, which is credited towards his prison sentence, with the 50% rule this 146 days turns into 292 days credit.  This means that Mehserle will serve somewhere between 7 and 8 months in prison.