Lawyered Up

Recent Sentences From Local Juvenile Court Cases

noreply@blogger.com (Richard Wagner) — Tue, 20 Dec 2011 14:27:00 PST

WAS JUSTICE SERVED IN THESE LOCAL JUVENILE CASES?

In Long Beach, a teenager who shot and killed Melody Ross was sentenced to 155 years to life in prison Monday by Long Beach Superior Court Judge Mark Kim. Melody Ross was a Wilson High School honor student gunned down by a gang member.

It was the maximum amount of prison under California Sentencing Law for defendant Tom Love Vinson, who was 16 when he murdered Ross and nearly killed at least three other people caught in the line of the fire the night of Oct. 30, 2009, as thousands streamed out of Wilson High School's gates.

The teenager, who was tried as an adult, expressed remorse Monday for the slaying of the 16-year-old Long Beach sophomore.

During the jury trial, Vinson took the stand and told the jury that he had to open fire that night because one of his rivals had pulled out a gun first. Two of his rivals, including Brad Van, were hit but survived. Two other girls within the line of the fire, including a friend of Ross's, were not hit. Ross, an innocent bystander, was struck by a single round and died at the scene.

Vinson was convicted of first degree murder, two counts of attempted murder and one count of attempted manslaughter. He was acquitted on one count of attempted murder relating to one of the victims who was in the line of fire, but not shot. The jury also found true that the shooting was carried out to benefit Vinson's gang and that Vinson personally used a gun in the attack. Vinson blamed growing up amid the violence of gangs for him pulling the trigger that night and said the death of Ross left him severely depressed.

As Long Beach Superior Court Judge Mark Kim calculated Vinson's sentence, several of them exclaimed in shock and frustration before bolting from the room. His criminal attorney implored Long Beach Superior Court Judge Mark Kim to consider giving Vinson a sentence that would allow parole within his lifetime, noting his young age of the time of the crime.

IS THERE AN ANSWER FOR THE DIFFERENCE IN SENTENCING? SHOULD THE COURTS BE CONCERNED WITH UNIFORM SENTENCING?

Up the coast in a Ventura Courtroom, a teenager who shot a junior high classmate in the back of the head during a computer lab nearly was sentenced Monday to 21 years in state prison.

Brandon McInerney, 17, didn't speak at his sentencing hearing, but his juvenile court lawyer said his client was sorry for killing 15-year-old Larry King. McInerney pleaded guilty to second-degree murder, voluntary manslaughter and unlawful use of a firearm after jurors deadlocked during his trial as an adult on a first-degree murder charge.

Under the plea bargain, McInerney's murder conviction was stayed and he received the harshest possible sentence under California law for voluntary manslaughter and use of a firearm. McInerney is ineligible for time served for good behavior because he pleaded guilty to murder. McInerney had just turned 14 when he shot King in front of shocked classmates at E.O. Green Junior High School in Oxnard in 2008.

Prosecutors attempted to paint McInerney as a teen who was influenced by white supremacist ideology. District Attorneys alleged it was a hate crime driven by homophobic rage because King wore girl's clothing and flirted with McInerney.

Several Los Angeles County jurors said they didn't think McInerney should have been tried as an adult. Los Angeles County Jurors rejected the claim that the killing was a hate crime.

In both cases, the juveniles did not accept a plea agreement and went to jury trial after being found unfit for juvenile court. The status of the victim certainly made a difference in these cases. In the Ventura case, there was a sexually-troubled victim. While in the Long Beach case the victim was an honor student.

The status of the accused in each case probably was a significant factor, too. McInerney is white and meant to shoot and kill someone who provoked him in the head, but the jury did not believe he was in a gang. Vinson was black, and the jury believed he was in a gang, and the killing was a result of being in the gang.

Lawyer'd Up: DUI Defense: Residential alcohol treatment program credit against jail sentence

noreply@blogger.com (jack gold) — Thu, 17 Nov 2011 08:35:00 PST

Lawyer'd Up: DUI Defense: Residential alcohol treatment program credit against jail sentence

noreply@blogger.com (jack gold) — Fri, 04 Nov 2011 16:02:00 PDT

"Let's" talk Law!!!! This is a small departure from Criminal Law but something that should be Criminal and that's, fraud. Fraud by major Internet and phone carriers. Now we know that nobody reads these numerous page contracts to sign up with AT&T, and others TWC etc. If you do read it you will see a paragraph that specifically states that the carrier can "change the terms of the contract at their discretion!" I say WTF about that, isn't this something that our regulatory angencies should look at? Is this what the conservative Republicans fight for? Freedom to rip us off? AT&T raised the payoff rate in my own two year contract! Didn't ask me. Didn't tell me. So folks, read the contract and spend an hour out of your day to do so. You might not want to sign it.

Medicare Fraud Bust in LA

noreply@blogger.com (Richard Wagner) — Fri, 28 Oct 2011 14:35:00 PDT

The Los Angeles Times reports a physician, a pharmacist and 15 others have been charged with Healthcare Fraud in Federal Court in Los Angeles.

Using stolen or illegally obtained Medicare beneficiary cards, members of the ring known as "runners" are accused of getting prescriptions for drugs from a Glendale doctor according to a criminal complaint unsealed Thursday in United States District Court in Los Angeles.

The medications were commonly Seroquel and Zyprexa, for which Medicare pays pharmacies up to $2,800 a bottle.

Fifteen alleged members of the ring were arrested Thursday and scheduled to appear in federal court in downtown LA. A 16th ring member already was in custody on a separate fraud case, and a 17th person remains at large.

If you have been arrested for health care fraud in Los Angeles, contact the criminal attorneys with 80 years of combined experience in criminal law.

Publisher Extorts Rug Store Mgr Facing Sex Charges in Orange County

noreply@blogger.com (Richard Wagner) — Fri, 28 Oct 2011 09:00:00 PDT

The Orange County Register reports after the manager of a Persian rug store was arrested on suspicion of sexual misconduct, his wife claims the publisher of a Persian-American magazine threatened her with extortion.

The publisher made his demand by phone and email on September 20, Laguna Beach Police Department said. He was arrested on suspicion of extortion and taken to Orange County Jail, Kravetz said. He was released on $20,000 bail.

Laguna Beach police arrested the publisher of Payam-e-Ashena, at his Irvine home. The person arrested is suspected of demanding $3,000 from the wife of the manager of a Persian rug store who was arrested on suspicion of sexual misconduct, and threatened to publish the booking photo on the cover of his magazine, Laguna Beach police said.

The manager of the Laguna Beach rug store faces multiple counts of sexual misconduct and remains in jail. The Orange County District Attorney's office last week added more charges against him. On Friday, the Orange County District Attorney's office announced additional charges for the rug store manager after 3 more women came forward. Seven additional women have accused the rug store manager of sexual assault, bringing the total number of potential victims to 11.

Charges now include sexual battery, rape, attempted rape, distributing pornography to a minor and indecent exposure. If convicted on all counts, the Laguna Beach rug store manager faces 60 years to life in prison.

If you have been arrested for any of these crimes, contact the criminal attorneys with 80 years of combined experience in criminal law.

Coach Accused Of Sexual Abuse Resigns From O.C. Gymnastics Club

noreply@blogger.com (Richard Wagner) — Wed, 26 Oct 2011 12:45:00 PDT

Coach accused of abuse resigns from O.C. gym The Orange County Register

He coached the U.S. women to eight medals in the 1984 Olympic gymnastics competition, a total that remains unsurpassed by any American women's Olympic team. The U.S. silver medal in the team all-around competition was the American women's first Olympic medal in gymnastics since 1948. Four of the six members on the U.S. team trained under Peters. He tutored nearly 60 U.S. national team members during his 32-year tenure.

2 OC Men busted, $1.5M in marijuana sezied in Pomona

noreply@blogger.com (Richard Wagner) — Wed, 26 Oct 2011 12:15:00 PDT

2 alleged SoCal growers busted, $1.5M in marijuana sezied - The Daily Breeze

According to the article, police were alerted to the possibility of a large scale cultivation effort by a tip. Cops found marijuana in various stages of growth. The two men had set up the operation to allegedly steal electricity from Southern California Edison.

Follow-up searches at the suspects' residences in Westminster turned up another 30 pounds of harvested marijuana.

The two Orange County men were booked for cultivation of marijuana for sale and possession for sale.

LAPD sergeant arrested Sunday on paid leave - The Daily Breeze

noreply@blogger.com (Richard Wagner) — Wed, 26 Oct 2011 12:08:00 PDT

LAPD sergeant arrested Sunday on paid leave - The Daily Breeze

According to the article, the LAPD sergeant worked for the Los Angeles Police Department for 18 years and is assigned to the Olympic Station. Bail is set at $125,00.

Pick Up Days at Eastlake Juvie

noreply@blogger.com (Richard Wagner) — Thu, 13 Oct 2011 10:27:00 PDT

Chapter 2

Back in 1971, we practiced law with no iPhones or World Wide Web. We relied on answering services and beepers to stay in touch.

My law partner at the time was Stanley Oda. Like any other start-up, we needed business. My Constitutional Law professor was Marvin Freeman. Professor Freeman was also Judge Freeman of the Los Angeles Superior Court, and Presiding Judge of the L.A. County Juvenile Court. One day we approached Judge Freeman, and the next Judge Freeman assigned us to the Juvenile Panel.

Now imagine this: We each had a "pick up day" at the Eastlake Juvenile Court Building (then an old piece of crap) filled mostly with referees, commissioners and Judge Freeman. The presiding judge of the L.A. Juvenile Court had his office at Eastlake.

On each of our pick up days, we handled arraignments, detention hearings, and Dennis H. hearings, etc. We set future dates on cases that didn't reach an agreement. At the end of the court day, we left the files in their respective courtrooms to be handled by a different attorney who came in on his/her day to handle the trial or plea as the case may be. From a LAWYER'S point of view, "HOW DOES THIS SOUND TO YOU?"

To be continued . . . In Chapter 3, we'll discuss the realignment and the methods for travelling the road to the bench.

--Jack J. Gold

Wanna Wear a Robe While You Work?

noreply@blogger.com (Richard Wagner) — Wed, 12 Oct 2011 15:00:00 PDT

So you want to be a bench officer? You thought about being a Court Commissioner or reaching a tad bit higher and filling out that application to become a Superior Court Judge? How about being Referee in Juvenile Court, Family Law or Probate Court?

Alright folks, we're going to take a little journey through time. I've always wanted to recount my experiences and hopefully give you an entertaining view of the system as it unfolded (for me) beginning in January of 1971. The date in 1971 began my legal career, and I wouldn't change anything.

So, we're going to start this journey through time as I recount how it was done back then and we will travel together up up through the present. I do hope you enjoy the ride and please, comment, ask questions, make remarks and enjoy.

Join me in my next chapter, Chapter 1, entitled, "Starting The Legal Career On Your Own (or) Hitting The Streets."

All comments can be reprinted at will by myself and posted for all to see so be careful what you say.

--- Jack J. Gold

L.A. Court Commissioners and Reporters: Hard Times

noreply@blogger.com (Richard Wagner) — Wed, 12 Oct 2011 12:43:00 PDT

On October 7, 2011, the Daily Journal confirmed the Los Angeles County Superior Court request to "as many as 30 commissioners and 30 court reporters to 'voluntary separate' from their jobs at the court." Presumably they could keep their jobs not at the court. The article says "the move was unexpected and comes weeks after Los Angeles County Court officials warned as many as 700 jobs could be cut next year..."

The Voluntary Separation Plan for Commissioners offers a "one-time payment" to commissioners who voluntarily resign.

Criminal attorney Jack J. Gold, a 40 + year member of the State Bar of California, an editor of this blog, served as a Los Angeles County Court Commissioner for 26 years.

UBS Trader Charged: Get The Picture

noreply@blogger.com (Richard Wagner) — Fri, 16 Sep 2011 13:38:00 PDT

Does the photograph of the black man charged with white collar crime speak a thousand words? The photo related to the recent story about Kweku Adoboli, the UBS trader charged with several counts of fraud, including unauthorized trades and false accounting is an outrage.

The charges are based on claims from the victim -- a Swiss bank over losses of about $2 billion.

This event took place in London, England. The place where there is the Magna Carta rather than the Constitution and Bill of Rights. It's also the place where there was no need for the 13th Amendment to the Constitution to make up for the horrors of slavery.

Everyone wants to blame someone for the "tough economic times." Who should shoulder the responsibility Main Street or Wall Street? Who caused the problem? What is the appropriate punishment for those who are responsible? All relevant questions.

Showing an image of a black man accused of a serious crime, flanked by white cops is too familiar in the United States. On the nightly news, a crime is committed in or around your neighborhood and the bad guy's picture goes up on your TV screen and he's black.

Now we have a situation -- the financial meltdown -- where the majority of the players are white. It's a perfect chance for the justice system and the media to even the score and put a face on the scandal. Now a major arrest has been made and the picture of the person responsible for it all goes up and he's ... well, you get the picture.

Since the banks were bailed out, the American public has wanted Wall St. to be held accountable. Where are the significant U.S. prosecutions? U.S. politicians can't advocate for that because Wall St. funds their campaigns.

Hopefully, when this mess gets sorted out, justice will be served.

Roadtrip to TJ: Still not sure about Water, but watch out for the Juice Boxes

noreply@blogger.com (Richard Wagner) — Sat, 20 Aug 2011 13:56:00 PDT

The cool story is about the West Memphis 3. I know. I basically missed that boat until I got the text yesterday "WM3 are free." I had no idea what that meant. It's embarrassing on a couple of levels (a) it's a big criminal defense story and I am a criminal defense attorney, and (b) all the cool people in society (actors and musicians) got behind the cause because it was such a big criminal defense story.

Moving on . . . Everyone loves a good scam, scheme, smuggling operation.

I'm fascinated by pill mills in general. It's human nature to be surprised when someone like a doctor who has apparently achieved a measure of success slips over to the dark side.

I'm also sensitive to the many ironies and hypocrisies found in the War on Drugs. I see a double standard in the application of the war on illegal drugs (crack cocaine and marijuana, etc.) that causes a disproportionate amount of black people to be locked up -- segregated from society. I do not see the war waged with same ferocity on the prescription drug or alcohol front.

The latest high-profile bust involves a doctor who the federal agents believe wrote prescriptions for about 920,000 hydrocodone pills, commonly sold as Vicodin and Lortablast. He has just been arrested along with a "pharmacy manager" and 13 others for conspiracy to smuggle prescription drugs from California to Mexico. Generally, the drugs flow the other way.

This particular operation sent the opiates to pharmacies in Tijuana for cash. The cash and pills were smuggled back into the U.S.

American addicts bought the pills OTC in TJ.

The Feds claim it was easier for the smugglers to unload large batches of pills at the loosely regulated Mexican pharmacies than to distribute them in small amounts to American street dealers. The same folks who are commandeering the war on drugs are the same folks who say America needs less regulation.

"We got Tijuana in the palm of our hand," one of the people accused of smuggling, said in a wiretapped conversation, according to a search warrant affidavit filed in the case. "We've been doing this for years, bro."

Smugglers strap pills to their bodies or hide them in engine compartments before crossing the border.

As part of the investigation, a 41-year-old woman was arrested walking across the border around 3 a.m. with 8,200 hydrocodone pills in two juice boxes, and a 37-year-old man was taken into custody walking across with nearly 4,000 hydrocodone tablets tied to his leg and waist. A 39-year-old woman was arrested with about $27,000 cash stuffed in her bra.

Humans and Marijuana Smuggled Into Orange County, CA

noreply@blogger.com (Richard Wagner) — Thu, 28 Jul 2011 15:40:00 PDT

The LA Times reports the federal government has charged 9 people with three separate maritime smuggling incidents along the Southern California coast within the last month.

Among those charged in federal court in Santa Ana were four people who were detained after their boat capsized Tuesday as it came ashore at Crystal Cove State Park, near Newport Beach in Orange County.

In that incident, government agents detained 14 people who said they were from Mexico. One person escaped.

This incident came 2 days after 15 people were rescued from Santa Cruz Island, where it's alleged they were abandoned by a smuggler.

One of the rescued has been charged with human smuggling. According to the L.A. Times report, the affidavit says he was to receive $100 for each immigrant he helped smuggle into the U.S.

Meanwhile, federal agents charged four others suspected of smuggling about 500 pounds of marijuana after their boat was stopped by agents June 9 off the coast of Dana Point.

If you have been detained for a federal criminal investigation, contact Gold, Leftwich & Wagner.

Locked in back of the L.A. Sheriff's Car!

noreply@blogger.com (jack gold) — Fri, 22 Jul 2011 09:40:00 PDT

My client is stopped by L.A. County Sheriff on a mountain road. He is a musician with long hair.

He and his friend were on their way to band practice. He is also a college student. The LASD deputy asks for his driver's license and then asks, "Do you have any drugs in this car?" Client says, "No." Then asks, "What did I do officer?"

The Client is then ordered out of the car, patted down, and placed into the back of the patrol car. LASD cars cannot be opened from the inside, and there is a cage between the front and back seat. In other words, he is not free to go.

The deputy completely searches the car, including opening the hatchback (no trunk) and finds a half empty vodka bottle. The officer retrieves the client from the back of the locked police car and snaps a photograph of the client holding the now empty vodka bottle as evidence of misdemeanor open container in the car.

Was the search of the car legal?
Was there any probable cause to search the car in the first place?
Was the Client under arrest after being locked in the patrol car?
Will the photograph of the empty bottle be admissible in court?
Is it considered "testimonial" and a violation of the Confrontation Clause of the U.S. Constitution?

If you have been stopped by the police in Los Angeles and must appear in court, contact the criminal defense lawyers with over 80 years of combined experience.

Misremembering the trial of Roger Clemens

noreply@blogger.com (Richard Wagner) — Thu, 21 Jul 2011 15:13:00 PDT

According to ESPN, Clemens' perjury trial ended Thursday, July 14, 2011 -- in a mistrial U.S. District Judge Reggie Walton blamed on prosecutors. Either I misheared that or misremembered hearing it, so I am blogging about it today.

U.S. District Judge Reggie Walton granted the defense request for a mistrial after prosecutors showed jurors evidence that Judge Walton had ruled inadmissible (i.e., the jurors could not see because it would be unfair).

Walton scheduled a September 2, 2011 hearing to determine whether to hold a new trial.

"Mr. Clemens has to get a fair trial," Walton said. "In my view, he can't get it now."

"Generally speaking, mistrial does not bar a trial of the defendant when the defendant requested the mistrial," said a former prosecutor who now defends white-collar cases.

"How could the government not have reviewed each piece of evidence after the court's pretrial rulings?" the former prosecutor wondered.

Our vocabulary became extended when Clemens' former teammate and close friend, Andy Pettitte, had told investigators that Clemens admitted in 1999 or 2000 that he used human growth hormone. Clemens now says Pettitte "misremembers" or "misheard" their conversations.

Judge Walton said this was the 2nd time prosecutors had violated his pre-trial orders. The other occurred during opening arguments.

A white collar defense lawyer, who used to work with the prosecutors when he was at the Justice Department, was quoted as saying both prosecutors have excellent reputations as ethical and responsible attorneys.

Obviously the prosecutors "misremembered" or "misheard" Judge Walton’s rulings.

If you have been acccused of a crime in California, contact the criminal defense attorneys with over 80 years of combined experience at Gold, Leftwich & Wagner.

Dodger Beating Suspect's Girlfriend Arrested, but Dodger Beating Suspect Still Not Charged

noreply@blogger.com (Richard Wagner) — Mon, 18 Jul 2011 13:26:00 PDT

The Long Beach Press-Telegram reports the girlfriend of Giovanni Ramirez a.k.a. 'The Dodger Beating Suspect." was arrested by the notorious Las Vegas Metropolitan Police Department on July 14, 2011.

His girlfriend is Denise Piccione. Apparently she was in Vegas and pleaded not guilty Wednesday, July 13, 2011 to charges of possession and trafficking of methamphetamine and possessing a dangerous weapon.

The Los Angeles Police Department has called Piccione a person of interest, but despite the highly trained LAPD's expert detectives, including special investigatory divisions devoted to tracking people down with specially trained dogs and sophisticated technological equipment, could not find her before her Las Vegas arrest.

She was in jail in lieu of $1,000 bail.

When asked to comment on Ms. Piccione's arrest by another agency despite his agency previously naming the woman a "person of interest" during a televised interview, LAPD Chief Charlie Beck refused, stating he didn't want to "try this case in the media."

However, Beck did provide these comments in spite of his refusal to comment and despite his preference for not wanting to try the case in the media. "We are actively pursuing a number of leads in the case," Beck said. "We still have over 100 clues to work. And when we are done with those clues, we'll make a decision on whether or not he'll be charged."

Beck also made the comment that investigators would take as long as necessary to follow the case to its conclusion.

"Giovanni Ramirez is still the primary suspect in this case and we are continuing to follow each lead to its conclusion," Officer Karen Rayner of the LAPD not refusing to comment or refusing to try the case in the media.

The LAPD has still over 100 clues to work and the Dodger Beating Suspect has not been charged in connection with the The Dodger Beating.

The Chief says he does not want to try this case in the media, however, the LAPD says through the media that Mr. Ramirez is the primary suspect. Mr. Ramirez is known in the media as 'The Dodger Beating Suspect" and he has not been charged with any crime.

Mr. Ramirez has been behind bars for 10 months for a parole violation. (Not sure what he did to violate his parole).

San Francisco Giants Fan Bryan Stow remains in a San Francisco area hospital, recovering from severe brain injuries suffered in the beating at Dodger Stadium.

If you get picked up on a parole violation or arrested on a drug or weapons case, contact the criminal defense attorneys at Gold, Leftwich & Wagner - let our over 80 years of combined experience go to work for you.

"Long Beach Police Department: One of the most violent police departments in the country"

noreply@blogger.com (Richard Wagner) — Tue, 12 Jul 2011 12:07:00 PDT

The Long Beach Press Telegram reported this week it had been nearly seven months since Doug Zerby was shot and killed by a ~~gang~~ group of 4 police officers in Belmont Shore, yet no ruling has been made on whether the shooting was justified.

Law enforcement point to Zerby's intoxication - the cops say the shooting was justified because Zerby's blood-alcohol level was 0.42 % at the time of the December 12, 2010 shooting, and he was holding a water nozzle that looked like a gun, pulling its trigger and pointing it at police.

Critics, including Zerby's family, have criticized police for failing to contact or confront Zerby before opening fire. The cops say they responded to a 911 call from a neighbor who reported a man sitting on a front porch of a friend's apartment on Ocean Boulevard in Belmont Shore with a gun.

Long Beach Police Chief Jim McDonnell said he could not discuss further specifics of the case, citing the ongoing investigation and pending litigation by Zerby's family.

Based on the police department's statistics for the past year, McDonnell said, the LBPD has been overwhelmingly successful with its response to potentially deadly situations.

In 2010, Chief Jim McDonnell claims his department had 281 citizen complaints against police and 617 uses of force. The year also saw 3,600 juvenile arrests and 26,290 adults arrested.

There have been a half a dozen protests and rallies held at police headquarters, city hall and, most recently, the Long Beach Police 43rd annual Awards Ceremony. Doug Kaufman, of the Long Beach Campaign to Stop Police Violence says the demonstrations are effective in making people aware of "the true face of the Long Beach Police Department."

Kaufman and members of the Long Beach Campaign to Stop Police Violence have hurled serious accusations against the Long Beach Police Department, saying police "shoot first and ask questions later." They say the LBPD is "an occupying force" in communities of color and disagreed vehemently with the chief's statistics for officer shootings.

"The Long Beach Police Department is one of the most violent police departments in the country," Kaufman said. His organization's outreach efforts have also found people who failed to report police violence, he said, noting the incidents include racial profiling and beatings.

If you have been accused of a crime in California, contact the lawyers with over 80 years of experience to defend you.

Jack Gold on Juvenile Law at the Beverly Hills Bar Association

noreply@blogger.com (Richard Wagner) — Mon, 11 Jul 2011 14:36:00 PDT

Our very own Jack Gold has agreed to speak on August 3, 2011 at the Beverly Hills Bar Association. This seminar is geared toward California defense attorneys interested in learning more about juvenile law from the perspective of a Juvenile Court Commissioner with over 26 years of experience.

As a Los Angeles Superior Court Commissioner, Jack Gold presided over serious and violent felony cases, including murders, rapes, deadly weapon cases, burglaries, and home invasion robberies. He also handled the run-of-the-mill misdemeanor cases like shoplifting, vandalism and graffiti cases. In all of the those cases, he decided on the appropriate disposition of the case.

This is a wonderful opportunity to earn MCLE credit and network.

Please click here for more information about the location, date, time and price for the seminar.

Child's Confession Involuntary: United States Supreme Court

noreply@blogger.com (Richard Wagner) — Mon, 04 Jul 2011 15:01:00 PDT

In a landmark juvenile law case decided by the Supreme Court of the United States, it was decided that a child's confession was not voluntary when he was questioned by school police (two) and two administrators in a closed classroom.

The original case comes from Chapel Hill, North Carolina when the minor child, age 13 became a suspect in two burglaries that occurred nearby the school. There was enough evidence to place the spotlight of suspicion on this Juvenile to warrant his interrogation by the police.

I printed out the decision in J.D.B. v North Carolina (564 U.S.______ 2011) and I think I sacrificed a whole tree, it was so thick. But basically JBD was hustled out of a classroom by a uniformed officer and taken to a closed door conference classroom and questioned by the police. He was not read his Miranda rights.
The thinking used by the officers is that at some point, the Juvenile was advised he was free to leave, he was not under arrest. Exactly how he was advised will forever remain a mystery. The child knew that he was a suspect since the police questioned him earlier in the week about two burglaries that happened in the neighborhood.

The Supreme Court, through Justice Sotomayor, delivered its opinion. We all know that Miranda Rights must be read to a suspect at the time he is placed in "custody" that is, when he or she is not free to leave. JDB, age 13, was removed from class by a uniformed officer, hustled into a closed room where he was questioned by 2 Police Officers and 2 School Administrators.

The interview (interrogation) lasted at least 30 to 45 minutes. The child was given neither his Miranda Warnings nor the opportunity to speak with his Grandmother (his guardian) , nor was he informed that he was free to leave the room. At age 13, in a room with 4 adults (2 cops and 2 school authorities) what is this kid supposed to think? He can just get up and leave? That is precisely the point of this case.

In a five to four decision, the conviction or finding of wardship was reversed, with the Court stating that consideration must be given to the suspect's age at the time he is questioned.

In my opinion it goes deeper than that. The Juvenile Lawyer must carefully question his client about the client's understanding of just where he/she was and whether he/she was free to just walk away. Of course we've heard many recitations of the Miranda readings and they are read from a card using exactly the same language each time, but the Juvenile or more aptly, the child is never the same each time.

Age is only one factor. The lawyer has to know how to discuss the situation with his client at the client's level. And later on, in court, has to know exactly how to cross-examine the officer to show the juvenile court judge or commissioner the exact situation. A good lawyer will recreate the scene so to speak.

As a Juvenile Court Judge, over my 26 years on the bench, I have heard Miranda rights testified to me ad nauseum, over and over again. So many times in my mind, I would think "why don't some of these cops get real and just tell a kid, "listen bud, you are not here under arrest, you can walk out the door, if you want to." How hard is that?

The author of this post, Jack J. Gold, is a former California Court Commissioner and now criminal defense attorney who represents clients accused and charged of crimes in California in juvenile and adult court.

San Diego Federal Sentencing Guideline Seminar

noreply@blogger.com (Richard Wagner) — Sat, 21 May 2011 22:59:00 PDT

As reality and routine settle in, here are my thoughts on the 3-day Annual National Seminar on the Federal Sentencing Guidelines in San Diego, California.

When I registered at The United States Sentencing Commission seminar, I got the same jolt to the system as I got the first time I stepped into a federal courtroom. There is more formality to it. The U.S. Marshals were there. Dressed in blazers, with ear pieces for the frustrated litigant who might use the occasion to have a chat with a federal judge about a recent prison sentence a family member recently received. There was also an agent that walked by me as I sipped my coffee, a dog handler, with a beautiful black Lab on a leash, patrolling the 2nd floor of the Hyatt, making sure it was free from contraband, explosives, firearms, non-citizens, etc.

There was also friendliness, camaraderie and mutual respect. The kind of manners you find more commonly in federal criminal defense practice as opposed to state. I remember after a DUI seminar in Palm Springs I waited in line up at the lectern for a No Cal DUI attorney. I wanted to compliment him on his presentation and tell him I thought he was a great DUI defense attorney. In return I got a weak handshake and no eye contact. At this seminar, federal judges who were appointed by Presidents of the United States, took time out after giving presentations to answer questions, chat, and were sincere and down-to-earth.

For 3 solid days I was immersed in instruction, contemplation and discussion among the players in the federal criminal justice system. (Thursday night I ducked out of the reception early, to catch the Padres v. Brewers game at PetCo, which was walking distance from the hotel, with my good friend, Aaron Hicks.) District and appellate court judges, private lawyers and public defenders, probation officers, prosecutors; and commissioners, advisors and directors from the United States Sentencing Commission, and law professors invaded the Southern District. These giants and gurus of federal sentencing came from all over the nation.

During a break, you might find me eating sliced mango with a defense attorney from Buffalo, or chattin' it up with a "Big Time" White Collar Criminal Defense Attorney from Manhattan, or hangin' out with a Criminal Defense Attorney from Detroit, or having continental breakfast with federal prosecutors from Kansas City and two defense attorneys from Tucson. It was interesting to speak with these lawyers, and some local Orange County defense attorneys who came to attend live panel discussions on the latest on federal criminal sentencing.

Usually each perspective in the federal sentencing process was represented on a particular panel by a judge, a defense attorney, a prosecutor, and a probation officer.

As lawyers who live on the cutting edge of federal criminal defense strategy, we point to certain critical events in federal criminal defense history. One such critical event was The Sentencing Reform Act, which created the United States Sentencing Commission and caused the Guidelines to take effect on November 1, 1987. Beyond its obvious significance, the judges who had been handing down sentences to federal criminal defendants before and after the Guidelines shared their personal thoughts on the overall effect the Guideline system has had on sentencing issues such as unwarranted sentencing disparity, lack of consistency and transparency.

Panels also discussed another seminal event in federal criminal sentencing history: the Booker decision. The Holy Grail of Federal Sentencing Supreme Court cases, primarily saying the Sentencing Guidelines are advisory, not mandatory.

One overall theme: know your judge. It’s basic. There is nothing wrong with going back to basics. After listening to judge after judge say the most difficult part of the judge’s job is to sentence a criminal defendant, reading between the lines, coupled with Booker, a defense attorney can really make a difference at this stage. The defense attorney makes it difficult for the judge by creating an individual out of his or her client. The defense attorney can do this by showing the history and characteristics of this person who will stand before the judge for all of about 15 minutes.

If you ever need a ride to the airport, ask a federal appellate court judge. Apparently, they have very little work to do because no sentence can get reversed on appeal because the standard is whether it was reasonable. Every appellate court judge said the district court judge has broad discretion in determining the appropriate sentence. This means the judge can rule outside the guidelines as long as the reasons are articulated, or set forth, on the record.

All judges bring different perspectives to the bench. Even more important: different judges have different perspectives within the same district. Some judges in some districts refuse to give probation for drug trafficking offenses, while others will allow it.

One of the most thought-provoking panels featured a district court judge from El Paso; a federal public defender from Cleveland; a prosecutor and Chief of the Criminal Division of the U.S. Attorney's Office in Boston, MA; a district court judge from Washington, DC; and a Supervisory U.S. Probation Officer from Columbia, South Carolina. This panel discussed drug case law and application issues involving Guideline section 2D1.1.: Unlawful manufacturing, importing, exporting, or trafficking (including Possession with intent to Commit these Offenses; Attempt or Conspiracy.

The panel covered how the 2007 Crack Cocaine Amendment reduced the statutory penalties for cocaine base or "crack cocaine" offenses, and eliminated the statutory mandatory minimum sentence for simple possession of crack cocaine. (Under the old sentencing scheme, for a first-time trafficking offender involving 50 or more grams of crack or 5,000 or more grams of powder cocaine, the penalty range was 10 years to life imprisonment. Because it took 100 times more powder than crack cocaine to trigger the same statutory mandatory minimum penalties, the penalty structure was commonly referred to as the “100-to-1 drug quantity ratio.”)

The discussion got radioactive when it got focused on whether it should be retroactive. The district court judge from Washington, DC and two different federal prosecutors expressed views on whether the Amendment should be made retroactive on offenders incarcerated as of November 1, 2011. This was such a hot topic that audience members broke out in applause several times. You don’t see that much at legal education seminars. A hearing is set for June 1, 2011.

Most judges (heavily) rely on the Presentence Reports for information for sentencing. Some judges do not, and are known to ritualistically sentence at the bottom of the Guideline Range. Some judges discuss the cases with the probation officer in chambers without the defense attorney.

Whether retained on a drug, firearms, illegal re-entry or white collar case, the defense Sentencing Memorandum should follow a 3-Step Analysis. This assists the judge in arriving at a sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing: Step 1: Correctly apply and consider the sentencing guidelines, Step 2: Consider the guideline policy statements, including departures such as age and family circumstances, and then Step 3: Consider §3553(a) taken as a whole, and decide if the appropriate sentence is one within the advisory guideline system or outside.

By this method of analysis you can show the judge why your case is "outside the heartland" and make a motion for a variance under §3553(a)(1)-(7). If you structure your argument for a variance around the §3553(a) factors, you will show how the advisory guidelines are inappropriate in your particular case.

If you are accused of a federal crime, contact the L.A. Law Firm with over 80 years of combined experience at Gold, Leftwich & Wagner.

"Irvine 11": What are the charges?

noreply@blogger.com (Richard Wagner) — Fri, 06 May 2011 10:22:00 PDT

The Los Angeles Times article on the 'Irvine 11' got us thinking about the actual misdemeanor charges filed by the Orange County District Attorney's office.

(Here's a link to the DA's motion in opposition to the defense motion to recuse the DA's office).

While we have not seen the charging document, the main crimes allegedly committed are: (1) disturbing a meeting, and (2) conspiracy to disturb a meeting.

Disturbing a Meeting
California Penal Code section 403 says a person who willfully disturbs or breaks up any lawful assembly or meeting is guilty of a misdemeanor.

The California Supreme Court Court gave us some guidance back in the 70's that ordinary manners and politeness should allow a person to present his or her talk with little interference. "This inhibition does not mean, however, that the state can grant to the police a 'roving commission' to enforce Robert's Rules of Order, since other First Amendment interests are likewise at stake." (In re Kay (1970) 1 C.3d 930, 938.)

On the other hand, the California Supreme Court noted "audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment."

"For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people; the Constitution does not require that the effective expression of ideas be restricted to rigid and predetermined patterns." (In re Kay (1970) 1 C.3d 930, 939.)

The possibility of adverse audience reaction "may aid in the correction of evils which would otherwise escape opposition." (1 C.3d 939.)

Conspiracy
In California, California Penal Code section 182 makes it a felony-misdemeanor to "conspire" to commit certain acts; California Penal Code section 183 limits punishable "conspiracies" to those listed in California Penal Code section 182; and California Penal Code section 184 provides that "[n]o agreement amounts to a conspiracy" unless some overt act is committed.

The United States Supreme Court says, "conspiracy is an agreement between two or more persons with the specific intent to agree to commit" a specified crime, "and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement."

"The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it's also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid." Krulewitch v. United States (1949) 336 U.S. 440, 69 S.Ct. 716, 720, 93 L.Ed. 790, 796 concurring opinion.

If you have been accused or charged with misdemeanor or felony charges in California, contact the criminal defense lawyers with over 80 years of combined experience at Gold, Leftwich & Wagner for a free consultation.

The Grand Jury: You show up, but do you lawyer up?

noreply@blogger.com (Richard Wagner) — Sun, 01 May 2011 22:02:00 PDT

The LA Times article by Michael Hiltzik has the link to the superseding indictment in the federal case known as the Internet Poker case.

"The Grand Jury charges" the eleven defendants with violating the Unlawful Internet Gambling Enforecment Act "through various deceptive means designed to trick United States' banks and financial institutions into processing gambling transactions on the Poker Companies' behalf."

Lots of hoopla about whether this prosecution should go forward. Beyond the hoopla however, when does a witness who gets served with a subpoena to appear before the grand jury lawyer up?

Our Sixth Amendment right to counsel attaches once formal criminal proceedings begin. Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). The United States Supreme Court has defined "formal criminal proceedings" as the time when "adversarial judicial proceedings" begin. 406 U.S. at 688. This means grand jury proceedings are excluded. United States v. Williams, 504 U.S. 36, 49, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (1992) (citing United States v. Mandujano, 425 U.S. 564, 581, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976)); In re Groban, 352 U.S. 330, 333, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957).

A grand jury witness does not have a Sixth Amendment right to counsel. United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000), cert. denied, 532 U.S. 935 (2001).

Although there is no right to counsel, many who are subpoenaned to appear before the grand jury not only show up, but bring their attorney with them to the grand jury appearance. The witness is entitled to (a) have counsel present outside the room and (b) consult with the attorney during the witness's appearance. See United States v. Mandujano, 425 U.S. 564, 581, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976); see Conn v. Gabbert, 526 U.S. 286, 292, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999).

The United States Attorneys' Manual also admonishes Assistant United States Attorneys to provide witnesses with an "Advice of Rights" notice, which says: "If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the jury room to consult with counsel if you do so desire." U.S. Department of Justice, United States Attorneys' Manual, Title 9, Ch. 11 &; 9-11.150.

If you have received a letter or subpoena to appear before a grand jury or must defend serious federal charges, contact the defense lawyers with over 80 years of combined experience at Gold, Leftwich & Wagner today!

[Blog Post] The Lawyers for Barry Bonds

noreply@blogger.com (Richard Wagner) — Fri, 15 Apr 2011 11:57:00 PDT

There may have been others, but Allen Ruby and Cristina C. Arguedas, got the most notoriety in the articles I read about Barry Bonds. It's almost as if Kanye should write a song about the lawyers, considering the miraculous job they did in the courtroom. It was an amazing feat from a lawyer's point of view.

First, the case was not in any Podunk arena. It was in a United States District Court. Second, they were not up against just any opponent. They were up against The United States, Department of Justice.

Beyond, the obvious, the case was a lawyer's dream. In a December 8, 2007 article, the New York Times reported "Barry Bonds spent the last couple of weeks interviewing top defense lawyers in the Bay Area."

Probably THE MOST HIGH PROFILE CLIENT at the time, Barry Bonds, was lawyer shopping. Imagine that? What search terms did he punch into Google?

He was being hunted down by The Feds like any real or fictitious personality in our nation's history. The scene turned out to be like any other celebrity rolling up to his day in court: Dressed in brand new suits, waving to fans, surrounded by an entourage, shuttled around in black sedans with tinted windows.

People who follow baseball, know statistics. Lawyers who practice criminal defense know, "The Feds don't fuck around." If they indict you, they have the goods. The stats against success for the holder of baseball's most revered statistic are just as staggering as the numbers he put up on the field. A published author and federal criminal defense attorney Alan Ellis posts the sobering stats here. Mr. Ellis drives home the point: 93.6% of Federal Criminal Cases end in guilty pleas.

Once accused, or notified you are about to be accused of a crime, in the Federal System like Barry Bonds you essentially lawyer up as fast as you can, with the objective to "play ball" with the Assistant United States Attorney. Generally, you get far better terms in your plea agreement under the Federal Sentencing Guidelines if you take responsibility for the conduct the government has accused you of committing.

The Feds usually have mountains of quality evidence against you in the form of wiretaps, photographs, audiotapes, results of tests done on computers and other forensic evidence, plus witnesses who will come to court to say how guilty you are.

Looking at this particular case, however, one can see why this case was one that would fall into the 6.4% that would not end in a guilty plea. Dr. Seuss might write, "Barry could not take a deal. Barry would not take a deal."

First, no trial tax. Unlike most cases, the sentence was not an issue in this case. Every publication said, he was only looking at home confinement if convicted even on the perjury counts. So, in reality, going to trial and losing had no downside. The judge could sentence him to time in prison, but that appears unlikely.

Second, any plea would have required him to admit that he was pleading guilty because he was, in fact, guilty. That was not going to happen.

Finally, as each day of trial unfolded, the public got to see what Barry's lawyers had known: the evidence was weak. The lawyers' analysis of the prosecution's evidence was correct. The prosecution witness list was considerably emasculated with no Greg Anderson. That was a huge factor. Greg was the tough-guy-trainer who supplied the flaxseed oil and arthritis cream to Barry. He was willing to go to jail rather than say that at trial, and be cross-examined about it.

No one here is taking anything away from Mr. Ruby or Ms. Arguedas. It was a huge win. It's just that if any other high-profile celebrities need representation, and have a close friend who is wiling to go to jail rather than testify, and the worse that can happen, if convicted, is home-confinement in your mansion, please feel free to contact my office for a free consultation.

L.A. Law: Robert Shapiro is an ass-kicker

noreply@blogger.com (Richard Wagner) — Mon, 11 Apr 2011 15:53:00 PDT

I almost didn't click on the link to the interview of famed Los Angeles attorney Robert Shapiro in the Los Angeles Business Journal for obvious reasons.

How many times can you read about the infighting between the Dream Team on the O.J case, or Robert Shapiro getting his friend, Phil Spector, to pay a $1 million retainer for the murder case, then gets fired and sued for a refund of the fees because Spector claimed "[Shapiro] chose to devote his time to other matters, instead of doing work on (Spector's) defense, which suffered as a result." Who cares about Christian Brando, Legal Zoom or the next big case he landed?

Considering the high-profile, criminal defense cases he has had, there is a lot of envy and jealously out there among lawyers, expecially in Los Angeles. Most lawyers probably wouldn't read the article for those reasons. But, I would recommend reading the article to learn about events such as the weekend he retained two DUI cases. Two different clients hired him to handle their DUIs. Big deal?

That, in and of itself, would make the average DUI defense attorney puff out his or her chest a little bit further -- maybe even invest in a personalized license plate. However, soon after the Patty Hearst case ended, well-known defense attorney F. Lee Bailey was arrested for drunk driving in San Francisco, and hired Shapiro, who had an office on Sunset Boulevard in Los Angeles. Then on Saturday night, The King of Late Night Television Himself, Johnny Carson, hired "Bobby Shaps" for his DUI in Los Angeles. And that he says, was NOT even the "turning point" in his career! Also, in the article Bobby shares the advice John Wayne, aka "The Duke," gave to Jack Nicholson, that Jack passed onto Bob.

Rod Stewart sang, "Some guys have all the luck." I would have said that about Robert Shapiro before reading the in-depth article. He and his family suffered severe personal tragedy with the loss of his son. No parent wants to outlive his or her child. Period. The interviewer asks some very good questions and the answers are very candid about an emotional topic.

The article is in the LA Business Journal presumably because Shapiro has made the transistion into the civil arena from criminal defense. (That means, high-profile, famous, celebrity, cases now click here). He says he likes the clientele better in business litigation. He also stays in shape by boxing 2 or 3 times a week. So watch what you say about him.