Los Angeles Criminal Defense Attorney

Are Bath Salts Legal in California?

October 19th, 2011

MDPV, Mephedrone 4 (aka 4-MMC), and Methylone (M1), the key ingredients in “Bath Salts” are, as of this writing, are in legal limbo in California.  However, earlier this year, the Drug Enforcement Agency (DEA) has enacted their emergency authority to prohibit possession or sales of these compounds.  The DEA has a year from the date of this “emergency hold” to decide whether or not to add bath salts to the list of Schedule I drugs.  From the DEA press release on the subject:

A Notice of Intent to temporarily control was published in the Federal Register today to alert the public to this action. This alert is required by law as part of the Controlled Substances Act. In 30 days or more, DEA intends to publish in the Federal Register a Final Order to temporarily control these chemicals for at least 12 months, with the possibility of a six-month extension. The final order will be published in the Federal Register and will designate these chemicals as Schedule I substances, the most restrictive category, which is reserved for unsafe, highly abused substances with no currently accepted medical use in the United States.

However in California, a recent law, codified under Health and Safety Code 11375.5, was just enacted which makes it illegal to sell/distribute/give away any “any synthetic stimulant derivative”, a misdemeanor offense.  The target offense on this is going after stores who sell “bath salts.”  However, simple possession of these synthetic stimulants is not a crime (not to be confused with the criminal possession of numerous other stimulants under Health and Safety Code 11377).

What is curious is the broad language in the statute.  After all, California already has Health and Safety Code 11378 which makes it a straight felony to sell a wide variety of controlled substances, stimulants such as MDMA and Amphetamine are some examples of stimulants covered by this statute.

Additional weirdness in 11735.5 is the specific exclusion of MDPV, which has been banned in other states and is widely agreed to be the predominate and problematic compound in bath salts.  The likely reason for this is that the legislature hopes that the ban on “any synthetic stimulant derivative” is enough to cover their bases when chemists undoubtedly figure out how to alter MDPV so that it is no longer MDPV, but an analog substance.

The Law Offices of Jerod Gunsberg are criminal defense lawyers who represent people accused of drug crimes and all other felony and misdemeanor offenses.

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Big Changes in California Sentencing Laws Coming October 1

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.

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Assault With A Deadly Weapon Is Not Always A Strike In California

April 10th, 2011

When a lawyer’s client is charged with felony assault with a deadly weapon under penal code section 245(a)(1), they are facing a “strike” under California’s Three Strikes law.  Assault with a Deadly Weapon is what I call a “mega-wobbler”, it can be charged as either a strike felony or it can be charged as a misdemeanor.  Of course, if filed or convicted of a misdemeanor, the charge is not a strike.  But if your client is facing a felony 245(a)(1) and there’s no hope of breaking it down to a misdemeanor, he or she may get a probationary sentence, there may even be a “no time” offer where your client must only perform community labor or community service.  But the downside is that the prosecutor may seem unwilling to change the charge, which would leave your client with a strike.

What to do?  You may be thinking “well you take the case to trial!”  Of course, trial is always the point every real criminal defense attorney should start from, and you may very well need to push to trial to get the best result.  But let’s presume that you really don’t have a good case to take to take to a jury, and you have a client who wants the matter settled.  What then? Triable case or not, nobody should plead their client to a strike if it can be at all avoided.

If a deadly weapon is used by your client in the assault, then the offense is a strike whether great bodily injury was sustained or not. However, if no great bodily injury was sustained by the complaining witness, and the prosecution is not alleging as such, then the one way to get around the strike problem is to “take the weapon out of your client’s hand.”  Penal Code §245(a)(1) reads as follows:

(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Look at the statute carefully. Notice how there is a distinction between an assault with the use of a deadly weapon and an assault by any means of force likely to produce great bodily injury. The phrase “by any means of force” does not mean that a weapon need be involved.  If a person sustains a felony conviction under this section for using a deadly weapon in the commission of the assault, then the conviction will be considered a serious felony under Penal Code §1192.7(c) and a “strike.”  However, if they are charged with felony under this section for using “force likely to produce great bodily injury” with no allegation that great bodily injury was actually sustained, then the offense is NOT a strike.  This principle was most recently upheld again in People v. Feyrer (2010) 48 Cal. 4th 426.

Bottom line:  If your client has no practical choice but to plead to a felony on this charge, at least you may be able to get rid of the strike.

Jerod Gunsberg is a Los Angeles Criminal Defense Attorney who handles serious and violent felonies as well as all criminal matters in and around the Los Angeles area.

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New Law For Early Termination of Probation in California?

April 3rd, 2011

Under California Penal Code 1203.3, a judge has the discretion to order the early termination of probation “in the interests of justice.”  The court can do this, even over the objection of the prosecutor.   However, prosecutors in Los Angeles County are starting to use a 2008 California Supreme Court case to support the position that if a probationary sentence was agreed to as part of a plea bargain with the prosecutor, then the court cannot modify probation in any way without the prosecutor’s consent.

Their rationale is based on a basic rule of contract law:  The court is not a party to the plea agreement.  The agreement is between the prosecutor and the defendant.  Therefore the court has no authority to modify the agreement. If the defendant entered an open plea to the court, then the agreement is between the defendant and the court, and the court and the defendant could agree on any subsequent modifications they want.

The case that the prosecution relies on is called People v. Seguara (2008) 44 C4th 921. Segura is about modifying custody time.  In that case, the court modified the defendant’s county jail sentence to 360 days from 365 days for immigration law purposes.  The California Supreme Court did not allow this modification of the custody time on the grounds that the lower court cannot modify a “material term’ of the plea agreement:

“As we have discussed, following entry of the judgment, the trial court retained its authority pursuant to section 1203.3 to revoke, modify, or change probation or modify conditions that were not made a part of the parties’ plea agreement. Nonetheless, as the trial court recognized, it was not at liberty to modify a condition integral to the granting of probation in the first place – a negotiated condition included within the plea agreement entered into by the parties, accepted by the court, and incorporated into the judgment.”  Segura at 936.

And what, you ask, is a “material term of probation?”  The Seguara court does not want to go there:

“We need not determine as a general matter what constitutes a material term of a plea agreement, because the one-year term in the present case clearly was a material term” Segura at 936, FN10.

So the bottom line is this:  After a negotiated disposition, the court can – without the prosecutor’s consent – modify probation under 1203.3 as long as the modification is not a material condition of the plea bargain.  But we don’t know what a material condition is.

There are other sections in 1203.3 that deal with notice to the prosecutor, but certainly nothing about a requirement that the prosecutor must approve a probation modification.

It is hard to imagine that the California Supreme Court intended to nullify the plain language of 1203.3(a), but that’s what some prosecutors are saying and some courts are starting to go along with it.

So what to do if you find out that the DA is going to use this broad interpretation of Seguara to oppose your client’s petition to terminate probation?  Argue to the court that Segura is limited to the issue of negotiated custody time, the length of probation itself is not a “material term” (as opposed to other terms and conditions of probation which require the probationer to affirmatively do something such as pay restitution, attend anger management classes, perform a certain amount of community service, etc.). And that to rule otherwise would be inconsistent with the plain language of Penal Code 1203.3(a).   If you lose, you’ve at least made your record in case your client wants to take it up on appeal — which is where this issue will eventually be resolved.

Jerod Gunsberg is a Los Angeles criminal defense lawyer handling all criminal cases including early termination of probation and expungement in Los Angeles and throughout Southern California.  He can be reached at 310-210-0744.

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New California Law Allows Video Cameras In Car – What It Means

December 21st, 2010

Ever been pulled over or arrested by the police following a traffic stop?  Did you wish you had a video and audio recorder in your car so you could prove that the cop’s version of events was wrong? In California, starting on January 1, 2011 you can do just that.  That’s right, on New Year’s Day on 2011, a revision to California Vehicle Code Section 26708 goes into effect and drivers will be permitted to install “video event recorders” on their windshield.   This will allow for drivers to record their driving, conversations with passengers, and arguably, encounters with the police.   Until now, such cameras were illegal under the premise that it obstructed or reduced the driver’s view.  However, there are strict requirements for these cameras:

  • Video recorder must have to the “capability of monitoring driver performance to improve driver safety.”
  • Recorder must be capable of recording audio, video and G-Force levels.
  • Recorder must automatically save recording and data when triggered by crash or unusual driving action or when recorder is adjusted by driver to do so.
  • Recorder cannot store more than 30 seconds of video, audio and data before or after the “triggering event.” (We have lots to say about this, read below).
  • Camera must be outside of the airbag deployment zone and in a seven inch square on the lower right corner of the windshield, or a five inch square in the lower left corner of the windshield.
  • Notice must be posted in a visible place in the vehicle that notifies the passenger that conversations are being recorded.

The purpose of this law is to encourage commercial drivers like truckers and shuttle operators to drive safely.  But the law allows any driver to use this device. As a criminal defense lawyer, what interests me is seeing how this recorder can be used to record people’s driving before being stopped by the police and more importantly, how this can be used to record people’s encounters with the police.  This could be vital in cases where issues such as probable cause or consent to search a vehicle, performance on Field Sobriety Tests, or the police’s conduct towards a driver.

Of course, the law provides that the video recorder must record in a loop and must only save 30 seconds worth of data before or after “the triggering event.”   This may be a hurdle in recording a lengthy police encounter.  But the issue that should be litigated is what is the “triggering event”?  30 seconds after what triggering event?  The incident that caused a traffic stop?  The entire police encounter?  This is an issue that will be hashed out in the courts, especially since violating the “video event requirements” is a violation of the Vehicle Code.   We wonder why 30 seconds is the allotted amount of time in the first place.  If this video event recorder is placed in a private vehicle and there is notice to passengers that it is being recorded, who cares how long it records for?  The owner of the car can turn it off at anytime, so this should help privacy concerns for private citizens.  The police know full well that they have no expectation of privacy during a traffic stop.  California Highway Patrol and most other police agencies are now equipped with dashboard video and remote audio that records traffic stops anyway.  Why shouldn’t citizens have this same right?

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Yes, Lawyers Are Allowed To Send You Mail After Your Arrest

November 28th, 2010

If you have recently been arrested, you’ve undoubtedly been flooded with mail from attorneys seeking your business.  You may find this irritating and embarrassing, and you may also feel like it is an invasion of privacy (especially if you are trying to keep your arrest secret from friends or family).  Frankly, we find this sort of direct mail marketing distasteful.  We have never sent jail mail and don’t plan to.

Clients frequently ask us if there is any way to stop the deluge of this “jail mail” from attorneys whom they have never heard of and have no intention of hiring.    The simple answer to the question is “No”, you can’t stop a criminal defense lawyer from sending unsolicited mail.  Why is this?

To start with, this sort of advertising is protected commercial speech under the First and Fourteenth Amendments of the U.S. Constitution.  As for the invasion of privacy issue, your arrest record is public record.  Some lawyers spend hundreds – if not thousands – of dollars a month to direct mail companies who subscribe to the daily Los Angeles County arrest reports and then send these advertisements to the people named in those reports (yes, the home addresses are in the arrest reports too).

However, there are some things you should know.  Under the California Rules of Professional Conduct for Attorneys, the lawyer advertising mail you receive must be clearly labeled as an “advertisement” or “newsletter” or some similar language.  Also, the advertisement cannot make any guarantees about the outcome (e.g. “We’ll promise to get your case dismissed!”), especially because there are no guarantees in a criminal case, period.  Finally, if you do decide to hire a lawyer who sends you ads in the mail, and there is an advertised fee in the ad,they cannot charge you more than the advertised fee.  So, if you decide to hire someone because they said they’d handle your DUI for  $799 then you find out that they really need $2500, they may be behaving unethically and illegally.

Of course, you should also be asking yourself what exactly it is you expect from a lawyer who charges you $799 for a DUI…but that’s another post for another time.  In the meantime, we’re sorry you have to endure yet another indignity in the wake of your arrest.

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Johannes Mehserle Sentence in Oscar Grant Shooting Explained

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.

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The Myth of the Wet Reckless In Los Angeles DUI Cases

October 17th, 2010

Many people accused of a DUI in Los Angeles believe that their lawyer get their DUI charge reduced to something known as a “wet reckless.”   For the uninitiated, a “wet reckless” is an alcohol related misdemeanor that is similar, but less serious than a DUI.  The benefits to a wet reckless include a shorter probation period, lower fines, six weeks of a weekly alcohol class rather than 12 weeks, and in LA County there in no requirement that an Ignition Interlock Device (IID) be installed on your vehicle.  However, a wet reckless is still “priorable”, meaning that if you get convicted DUI in ten years, the wet reckless counts as a prior DUI conviction and the penalties on your next DUI will be enhanced.

Do not be fooled by an attorney promising you that he or she can “get you a wet reckless with no problem” in your DUI case.  For starters, a good DUI lawyer should always vigorously investigate your case and be ready to take your case to trial.  Whether your case actually goes to trial or not, preparing for trial is the way to get the best deals.  Now, if you blow a .08 or .09 on a first offense, sure there’s a strong chance you can get a wet reckless and if your lawyer does his or her job properly you may even get an even better offer.   But if your breath or blood shows that you have anything more than a .10, your lawyer is going to have work to get that wet reckless.  Los Angeles DAs and City Attorneys don’t give away wet reckless for nothing, your lawyer is going to have to research the case, file the discovery motions and really challenge the police and prosecution’s case.

  • Were the chemical tests performed properly?
  • Was the breath machine functioning normally?
  • Did the officer administer the breath tests correctly?
  • If blood was drawn, was the blood drawn, preserved and stored properly?
  • Was the equipment that tested the blood in working order?

These are just a few of the issues that a lawyer needs to investigate and discover in most cases.  Of course, if there is really a significant problem with the way in which the tests were done, you may find that your lawyer is able to get the charge reduced even further or you may even be able to take your case to trial.   Whatever your circumstance you need to be sure that a qualified criminal defense lawyer is handling your DUI case.

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Los Angeles DUI Checkpoints – Labor Day

September 6th, 2010

The Labor Day Los Angeles DUI checkpoint at the corner Venice of Abbot Kinney was in full swing this afternoon and evening.   If you went through this checkpoint and were then arrested for DUI, driving on a suspended license or any other offense, you may need to contact a qualified criminal lawyerwho understands how to handle complicated checkpoint cases.  DUI checkpoints are governed by stringent and detailed rules set forth by both the California Supreme Court and the United States Supreme Court.   It is critical that the criminal defense attorney you hire to represent you understands that ins and outs of DUI checkpoints.  Checkpoint cases present multiple issues beyond the normal DUI case.  These issues include whether or not a “neutral formula” was used to decide which cars to stop, the methodology used to determine where to set up the checkpoint, and time limits on how long the checkpoint must operate.  There are more issues which your lawyer will explain to you.

Often people who are not DUI find themselves under arrest at checkpoints for outstanding warrants, driving on a suspended license, and other offenses.   If this has happened to you , it is even more important that you contact an attorney and explain everything that transpired during the traffic stop.   You may be surprised at how often the checkpoints are not run correctly.

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Los Angeles DUI Tip – Don’t Mess With the Drive Thru

August 29th, 2010

The easiest way to avoid a DUI in Los Angeles is to not drink and drive, but one sure way to get caught driving drunk is going through a fast food drive-thru while intoxicated.  If the person taking you order, your money and or giving you your food at a fast food drive-thru believes you are drunk,  they will call the police and report you.  Yes, this is perfectly legal.  The police are allowed to use a tip from a citizen informant to form the probable cause to stop you for DUI.  All the fast food worker has to do is call the police and give them your license plate number along with the make and model of your car.  If you even make it out of the parking lot before the police arrive, you’ll be pulled over very quickly, charged with a DUI and will you find yourself in need of a criminal lawyer to represent you — if you even make it out of the parking lot.   Needless to say, your chances of the police being called increase if you are rude to the people working the drive-thru window.

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