Careful Lawyering

One of the biggest problems i have encountered over the past years in my law practice is the failure of criminal defense lawyers to educate themselves prior to entering into plea bargains for their non-citizen clients.  A perfect example is a case i recently handled where the client was charged with embezzling over $100,000 from her employer. There was no question she was guilty, so her defense lawyer pled her guilty to Grant Theft by Embezzlement, and since the client had no previous record she received a probationary sentence.

Unfortunately, the lawyer did not realize that allowing the client to plead guilty to Grand Theft by Embezzlement meant that the client was now deportable, and in fact some months later the client was arrested by INS and placed into deportation proceedings. Fortunately, the client was referred to me and i filed a Motion to Vacate the words “by Embezzlement” from the charge filed against her and to which she pled guilty.  After weeks of pleading with the higher-ups in the District Attorney’s office i was able to convince them to strike the words “by Embezzlement” as shown in the attached minute order.

If the previous lawyer had done his homework and asked to have the words “by Embezzlement” stricken from the charge at the time the client pled guilty, she would have avoided months in the custody of the INS and been able to get on with her life. Any non-citizen facing criminal charges should be sure to hire a careful lawyer who will make sure he understands all possible immigration consequences when recommending a plea bargain.

Child Beating

We have all heard about situations where a parent seriously beats and abuses his/her child, sometimes even to the point of death. Obviously these are horrendous crimes. But what about situations where a parent is disciplining a child, and the child suffers a minor injury. Should such an incident be punished as a crime?
Recently I handled a case where the father disciplined his daughter by hitting her with a belt on her legs, causing a bruise. No blood, no broken skin. The girl, 10 years old and with a history of throwing temper tantrums, was throwing water on the floor and refused to stop when asked by her nanny. The nanny called the mother, who called the father, who had to come home and discipline his daughter. The next day, the girl went to school and the teacher saw the bruise. The police are called, and the father is subsequently arrested. Not only is he arrested, but a restraining order is issued which requires that he can no longer live in the family home, and cannot even talk to or visit with his daughter. When we go to court for his arraignment, the criminal judge refuses to even consider amending the restraining order because the deputy district attorney, a young woman with no children, thinks this man is a monster.
Luckily, child abuse cases are also handled through the child dependency courts, where there are experts available to assist the family in working out such problems. In my case the dependency court referee issued a different restraining order allowing monitored visits by a neutral party, and some weeks later rescinded the separation order so the father could return home. We resolved the criminal case without jail time, along with anger management and parent counseling sessions, but another deputy district attorney, this time a young man, objected mightily to the father coming home. Why? Because he hit his daughter, that’s why. Luckily, the judge had more sense and amended the criminal restraining order to allow the father to return home in accordance with the child dependency court order.
Child beating cases can be very tricky. Parents are allowed to “reasonably” discipline a child, and may administer “reasonable” punishment, including the infliction of “reasonable” corporal punishment. So in California it is still lawful for a parent to hit his child, as long as the punishment was not excessive under the circumstances. But if you end up with the kind of prosecutors we had on this case, you can be in big trouble. Their idea of reasonable can be a lot different than a normal parent who has to deal with the difficulties of a recalcitrant child. And if you have a child who seriously misbehaves, gets hit, and then tells his teacher or nurse that mommy or daddy hit him, expect the police to be knocking on your door, and you’ll end up living in a hotel somewhere. So physically disciplining your child is a risky proposition, at best.

Plea Bargaining

Even the most famous of criminal lawyers can lose a trial from time to time. Mark Garagos, the well-known Los Angeles criminal defense attorney and media personality, lost the Scott Peterson murder trial, and the Winona Ryder petty theft trial, to name but a couple. So when you are looking for a lawyer to defend against criminal charges, it is important to hire someone who knows how to negotiate the best possible outcome for your particular circumstance, as well as being a strong advocate in the event you must go to trial.
I would like to provide an example of successful plea bargaining involving one of my clients. The young man became involved in an argument with several other young men in a parking lot one early morning. Harsh words were spoken and the client pulled out a BB gun and fired several pellets into the chest of one of his antagonists. The victim almost passed out from fear, but suffered only minor abrasions. The client jumped in his car and sped away, but eventually the police apprehended him and he was charged with Assault with a Dangerous Weapon and Assault with Intent to Commit Great Bodily Injury.
The client’s father, a very wealthy man, hired a well-known criminal lawyer in Los Angeles for a hefty sum of money. The lawyer worked out a deal where the client would plead guilty to the Great Bodily Injury charge, and would be placed on three years felony probation with 30 days of Caltrans. At the end of probation the charge could be reduced to a misdemeanor. Not a bad deal, but the father didn’t think it was good enough and eventually came to me.
Based on my review of the situation I found that there were many mitigating factors in the client’s background which were not originally known to the District Attorney. I caused a Private Probation Report to be prepared which included many letters of good character, a psychological profile, and other relevant information. The court room prosecutor would not budge off the offer made to the prior lawyer, despite the new information. I ended up going to the supervising prosecutor in the district where the case was set, a prosecutor I knew and with whom I had a very good relationship. After further negotiation, we reached a disposition for a misdemeanor battery charge with some community service. The client and his father were, of course, ecstatic.
Obviously a good working relationship with the prosecutor’s office can be very important in reaching a successful plea bargain; thorough investigation and preparation are also very important elements in achieving a desired outcome. And never overlook the value of persistence. This website contains numerous examples of the efficacy of utilizing such techniques in the criminal arena.

Shoot to Kill – If Not It’s Murder

I think it was Gilbert & Sullivan who said “The law is an ass”. While that is not always true, the felony-murder rule certainly supports their claim. The felony-murder rule basically provides that even though you did not intend to murder someone, if you commit a felony dangerous to life you can still be found guilty of murder.
The rule makes sense in many contexts. For example, if you drive 100 miles an hour in a residential neighborhood and run down and kill someone, your conduct is so obviously dangerous to life that you could be found guilty of second-degree murder. Or if you participate in an armed robbery and someone is killed, you could be found guilty of murder under the felony-murder rule.
However, in California, our Supreme Court has annunciated a felony-murder rule that makes a mockery out of the rule of law and justice. The case is People v. Robertson, (2004) 34 Cal.4th 160). This case arose out of a situation where the defendant was accosted by several individuals who tried to burglarize his automobile, and when he tried to scare them away by pointing a gun at them they further threatened him. He ended up shooting and killing one of the men. His defense was that he was acting in self-defense. Unfortunately for the defendant, however, he testified at trial that he was not actually shooting at the victim to kill him, but rather shot into the air in order to scare him, and the bullet accidentally hit the victim.
Because of this testimony, the prosecution charged the defendant with shooting a firearm with gross negligence, under the theory that firing a weapon in the general direction of a human being is clearly gross-negligence. The Supreme Court, in its infinite wisdom [not], decided that even though the defendant might have a valid claim of self-defense to the charge of murder, shooting a firearm with gross-negligence is inherently dangerous to life, and therefore constitutes felony-murder and the defendant is legally guilty of second-degree murder. In other words, if the defendant had testified that he intentionally shot at the victim, he could claim self-defense, and if believed he would be guilty of at worst manslaughter. But if he testifies that he was not trying to shoot at the victim, then even though he has a valid claim of self-defense he is guilty of second degree murder under the felony-murder rule!!
So the moral of the story is that if you shoot at your assailant because you are afraid for your life, you better testify that you aimed to kill, and not just fired your gun to scare the person away. Incidentally, this issue is now on appeal again in a different case with the same basic facts, so maybe this time the courts will decide to overrule Robertson and Gilbert & Sullivan.
Follow-up:   Lo and behold, on March 30, 2009, the California Supreme Court, in People v. Chun, overruled the Robertson case and held that even if you shoot to scare, rather than to kill, the felony-murder rule does not apply.  So maybe there really is justice in the world after all.

Successful Defense of Spousal Abuse & Domestic Violence

Conviction for domestic assault and battery in California, depending on the extent of injury, calls for a state prison term of two to four years, or a county jail term of up to one year. Los Angeles County criminal defense lawyer Alan Fenster explores all possible defenses to clear his client’s name through a jury trial or motion to dismiss charges, or to achieve the best outcome for a guilty plea.
A common scenario after an assault is reported is that the spouse or relative does not want the alleged assailant to be prosecuted. Unfortunately, prosecutors will still push for a conviction, particularly after the deadly outcome of O.J. Simpson’s pattern of assaults on his ex-wife. If the victim refuses to testify, prosecutors will try to introduce previous assault complaints against the defendant made to police or other individuals. Prosecutors frequently threaten victims with contempt of court charges to compel them to testify.
Alan Fenster has successfully invoked a recent Supreme Court case (United States v. Crawford) in defending clients against domestic battery charges. In Crawford, the Supreme Court held that hearsay testimony (i.e. “My daughter told me that her husband beat her”), including uncorroborated hearsay reported to police cannot be entered into evidence in most criminal prosecutions. This exclusion makes it more difficult to pursue spousal abuse cases where the spouse does not want to prosecute. Mr. Fenster has used this important ruling to prevent the state from forcing the alleged victim to testify, and to keep damaging testimony out of court. In the best scenario, charges are dismissed. At worst, the prosecution has less ammunition at trial.
If the victim wants to press charges (or is forced to testify), Alan Fenster has the experience to employ many other effective defenses to prevent conviction or gain leverage for a plea to lesser charges, such as misdemeanor assault or disorderly conduct.

Successfully Avoiding Criminal Prosecution

One of the golden rules of the criminal defense bar is that a client should never talk to the police when he/she has been arrested for some alleged criminal conduct. However, a creative lawyer should never blindly follow a so-called “golden rule”. This is particularly true when an innocent client has been arrested. In such situations, the creative criminal defense lawyer should leave no stone unturned to help the client avoid a criminal prosecution in the first place.
Just because someone has been arrested for a crime does not mean he must thereafter be prosecuted. Law enforcement must bring the police reports and any other evidence bearing on the arrestee’s guilt to the applicable prosecutor’s office for review to determine whether criminal charges should be filed and the case taken to court. The prosecutor must decide whether there is enough evidence to believe there is a reasonable probability that the charges to be filed can be proved beyond a reasonable doubt. If the evidence submitted does not meet that requirement, then the case is not filed and the arrestee need not even go to court for an arraignment.
If the person arrested employs a lawyer immediately after his arrest, the lawyer should make every effort to assist law enforcement in becoming aware of exonerating evidence and thus preventing the case from being filed. For example, in the area of spousal abuse, a husband and wife may get into a heated argument where the wife [or sometimes the husband] gets so upset that the police are called and a false or exaggerated claim is made of physical abuse. In Los Angeles as well as most jurisdictions in the United States, if the police are called on a domestic violence claim, after the O.J. Simpson fiasco, somebody is definitely going to jail, no matter how minor the problem may be. In Los Angeles, bail on a charge of domestic violence is automatically $50,000.
In such situations, the police report will usually reflect sufficient grounds for the case to be filed by the prosecutorial agency. Police officers are trained in the laws of spousal abuse, and it is almost a certainty that their reports will cover all bases, even if they have to fictionalize or exaggerate the statements of the “victim”. However, if the innocent arrestee hires an attorney before the case goes to the prosecutor, it is sometimes possible to intervene with the investigating officer before he gets to the prosecutor and demonstrate how the claim is false, thus preventing the case from getting filed. For example, recently I represented a man who was accused by his wife of hitting her several times before she called 911 and the police arrived. When the police contacted the wife, she was crying, disheveled, and had bruises on her face. Sounds like a slam dunk filing, right?
Wrong. It turned out that the wife had a previous felony conviction for assault with a deadly weapon on her husband, and during the argument between the husband and wife he had called his mother, a former police officer, and told her that his wife was attacking him again. I contacted the investigating office and asked him to speak to the mother and check out the criminal record of the “victim”. As a result of this intervention, no criminal charges were filed, and an innocent man did not have to even go to court.
Now back to the golden rule of never letting your client speak to the police. After his arrest and before any charges were filed I was hired by a man charged with felony assault with a baseball bat. The victim was in the hospital with a concussion and there were several witnesses to the assault. Again, a standard filing, one would think.
Wrong again. The assault by my client was the culmination of various events where he was attacked by friends of the victim, and in retaliation he confronted one of these friends while the victim was present. After a fight with one of these friends, the victim ended up fighting with one of the client’s friends, and eventually my client had to come to his friend’s assistance by hitting the victim over the head with a baseball bat. With my heart in my mouth, I brought my client to meet with the investigating officer, along with other witnesses who had information about the events that led up to the brawl. After interviewing my client [who had recently applied for a law enforcement job so any criminal filing had all would have eliminated his employment in law enforcement] and our other witnesses, the investigating officer recommended that no charges be filed against my client! So much for the golden rule.

Vacating Criminal Convictions and the Meaning of Prejudice

The California Supreme court, in re Resendiz, 25 Cal.4th 230 (2001) ruled that a criminal conviction could be vacated, i.e., eliminated, when a non-citizen is either not advised or is improperly advised as to the immigration consequences of a guilty plea when such non-citizen is facing deportation or exclusion from the United States as a result of such a conviction. Penal Code 1016.5 requires that a criminal defendant pleading guilty must be told the following at the time of the guilty plea: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
However, the Court further ruled that in order to vacate a criminal conviction where there is a violation of Penal Code 1016.5 the non-citizen must establish that he has been prejudiced as a result of the improper admonition. The ordinary legal definition of “prejudice” is “injury or damage resulting from some judgment or action of another in disregard of one’s rights, especially; detriment to one’s legal rights or claims.” Thus, at first blush, one would think that since failure to properly advise a non-citizen of the immigration consequences of a guilty plea clearly results in an “injury or damage”, i.e., deportation from the United States, prejudice must always be a consequence of the improper admonition.

Unfortunately, Resendiz did not apply such a common sense analysis of prejudice in the context of a non-citizen being improperly advised of immigration consequences. In Resendiz, the court found that bad advice from his legal counsel caused the defendant to be unaware that his guilty plea would require deportation from the United States. However, instead of finding prejudice from the simple fact that Defendant was wrongly advised, the Court went on to say that the defendant had to demonstrate prejudice by establishing “a reasonable probability existed that had he known the true state of affairs regarding the deportation consequences of his guilty plea he would not have pled guilty and would have insisted, instead, on proceeding to trial.”
In order to establish this “reasonable probability”, it is not enough that the defendant merely claims that he would not have pled guilty had he known the immigration consequences of his guilty plea. Rather, the defendant’s claim must be “corroborated independently by objective evidence.” “In determining whether a defendant…would have accepted [or rejected a plea] offer, pertinent factors to be considered include: …the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.”

So it seems from the above language that if a non-citizen defendant receives little benefit from a guilty plea, he is definitely prejudiced if he later faces deportation. Of course, balancing the benefit of a plea disposition against the draconian consequence of deportation where such defendant has lived in the United States for a lengthy period of time or has strong connections to the United States and little or no connection to his country of birth would seem to require a finding of prejudice in almost all circumstances. For some unfathomable reason, the Supreme Court did not even consider this aspect of prejudice. Rather, the Court found that the defendant failed to establish prejudice because he did not demonstrate “how he might have been able to avoid conviction or what specific defenses might have been available to him at trial.”
It was not sufficient for the Court that the defendant claimed he was innocent and that the police report showed he had a “triable case”.
It is worth noting that Justice Mosk filed a dissenting opinion on the issue of prejudice and strongly demonstrated that because of the defendant’s ties to the United States he was clearly prejudiced. As he stated: “Few with petitioner’s family and cultural ties to the United States would turn down a chance, even a slight chance, of escaping the talons of the federal law. A rational person could conclude that the great likelihood of spending some five years in a California prison, balanced against the slight chance of avoiding permanent banishment to the developing world, is a worthwhile gamble.” Unfortunately, the common sense approach taken by Justice Mosk did not move the majority of the justices rendering the Resendiz opinion.

People v. Castro-Vasquez, 148 Cal. App. 4th 1240 came along in 2007 to make matters even more confusing. In this case, the trial court found that Penal Code 1016.5 had been violated, but it further found that there was no prejudice to the defendant because the defendant failed to establish that had he gone to trial “a different and more favorable outcome would probably have resulted,” citingResendiz. The Court of Appeal disagreed with the trial judge, stating “The Court did not hold that prejudice must be established by showing the probable favorable outcome of any trial; it merely suggested that the probable outcome of a trial was one factor a court could consider in assessing the likelihood that a defendant would have rejected a plea offer. In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trail [if properly advised] an appellate court…may consider the probable outcome of any trial, to the extend that may be discerned.”
Such an interpretation of prejudice means that the trial court in its infinite wisdom should predict what a jury would do in determining guilt or innocence. Such a standard is completely contrary to the actual holding in Resendiz, where the Supreme Court insisted that an objective standard must be used in determining whether prejudice flowed from an improper immigration admonition. Obviously leaving determination of possible guilt or innocence to a trial judge is the worst form of subjectivity.
Case law in California has also indicated that the test for prejudice is whether the defendant can show that it was “reasonably probable…that he would not have pleaded guilty if properly advised.” People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183. Such an interpretation of the standard to be applied in determining prejudice is strongly in accord with the analysis of Justice Mosk in Resendiz. If a defendant has even a shred of a possibility of avoiding deportation by going to trial rather than be deported from his family, friends, and adopted country of many years, certainly it is reasonably probable that such a defendant would avail himself of trial, regardless of what some trial judge might think of his chances of winning such a case.
Thus, the state of the law regarding the standard of proof necessary to establish prejudice remains quite muddled. Like so much else in the criminal system, the outcome of any motion to vacate a conviction in the immigration setting will depend to great extent on the sympathy generated by the plight of the non-citizen applying for relief, and the amount of compassion flowing through the heart of the trial judge hearing the motion.

Winning a Motion to Suppress Evidence

Recently I represented a client who was arrested for selling and possessing for sale various quantities of marijuana. The only way to win the case was to file a motion to suppress evidence under 1538.5 of the California Penal Code. After a lengthy hearing on this motion, the court ruled in our favor and suppressed the evidence. The charges were then dismissed.
The police officer testified that he was driving down Century Boulevard in Los Angeles when he observed my client standing on the sidewalk and handing another man a plastic baggy which appeared to contain marijuana. He saw the other man hand my client something in return, but he could not see what it was. Supposedly my client then observed the police car and ran into his house. Believing that he had just observed a marijuana sales transaction, the officer and his partner stopped their police car by the man who received the plastic bag, which was now under his t-shirt. The officers searched the man and recovered a bag of marijuana. The officer then claimed that he went up to the apartment where my client had gone, and through the screen door he observed my client in a rear bathroom trying to flush what looked like marijuana down the toilet. Eventually the officer forced entry into the apartment, handcuffed my client, and recovered many ounces of marijuana both on the bathroom counter and in the toilet.
At the suppression hearing, both my client and the other man testified that the man had come over to the client’s apartment for a social visit. The man said that he had purchased the marijuana prior to going to the apartment, and was carrying it in his pocket. He further testified that the officer’s claim that a transaction occurred out on the sidewalk was false; the man never purchased marijuana from my client, not even in the apartment. Obviously, I argued that it was ridiculous to believe that the two men would have engaged in a marijuana transaction out on the sidewalk in front of whoever happened to be passing by; even assuming the client sold marijuana to the man he certainly would have done it in his apartment, not out on the sidewalk.
This kind of conflicting testimony takes place every day in the courts of this country. Police officers often lie about having probable cause to search and arrest people for criminal activity. The problem for judges is how to decide when an officer is lying and when he is telling the truth. Most of the time the judges rule in favor of the police officers. That way the judges can stay out of trouble with the prosecutors’ office, and most of the time the defendants who might have been arrested and/or searched illegally were still guilty of the crime, so who cares if a little perjury was committed by the police?
In the case here under discussion, the judge was very intelligent and highly respected. Whenever possible, the defendant trying to suppress evidence should make every effort to seek out such a judge to hear his motion. When there is no arrest or search warrant, the prosecutor has the burden of proof in establishing that the search was lawful. In this case, the police officer had 12 years of experience and was highly trained and experienced as a witness. His testimony sounded totally believable. My client and his friend were not experienced witnesses, and they were quite nervous while testifying. However, while the prosecutor did undermine some of their testimony, he could not crack their statement that there was no sale of marijuana outside of the apartment. So the suppression motion boiled down to a police officer giving believable testimony that he saw a marijuana transaction countered by two individuals who were involved in possessing and maybe even trafficking in marijuana who gave believable testimony that there was no marijuana transaction.
The judge, incredibly enough, ruled that since there was no way to know who was actually telling the truth given the way they testified, he had to rule for the defense because it was the prosecutor’s burden to prove the legality of the search. A wise and gutsy call by the judge. It’s important to note that I did very little cross examination of the police officer. From my many years as a criminal defense lawyer I have learned that cross-examining an experienced police officer usually ends up making him look better, not worse, and gives a judge more reason to believe his testimony, not less.
So, with a righteoust judge, and properly prepared witnesses, it is still possible in this country to suppress illegally obtained evidence, despite the best efforts of police officers to give false testimony in order to convict the “bad guys”.




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