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Recent Posts in Criminal Defense Category

March 19, 2010
  Statutory Rape Avoids Mandatory Sex Registration
Posted By Thiagarajah

The recent case of People v. Taravella (2010) expands the Hofsheier rule to help defendants avoid lifetime registration as a sex offender pursuant to Penal Code section 290.

Statutory rape is one of those quirky areas of the law with respect to mandatory lifetime sex offender registration pursuant to Penal Code section 290.  As the law currently stands, consensual sex with a minor (depending on the age of the minor) is prohibited by Penal Code section 261.5, but is not subject to mandatory lifetime sex offender registration  However, consensual oral sex or consensual sodomy with the same minor does require mandatory lifetime sex offender registration. 

The Hofsheier rule (see our blog of Hofsheier) allows defendants to avoid lifetime sex registration in certain situations involving consensual oral sex or sodomy with a minor who is 16 or 17 years old.   In Taravella, the court allows a defendant to avoid registering as a sex offender for consensual sexual acts   with victims as young as 14 years of age.

More importantly, Taravella allows defendants who have been previously required to register as a sex offender to overturn their sex registration status.   If you have been required to register as a sex offender because of consensual sexual acts with a minor 14 years of age or older, please contact   our office as soon as possible, so we can work on lifting the burden of lifetime sex offender registration.

Continue reading “Statutory Rape Avoids Mandatory Sex Registration” »

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March 17, 2010
  St. Patrick’s Day Sobriety Checkpoint
Posted By Thiagarajah
All the major law enforcement agencies of Orange County have formed the “Avoid the 38” DUI task force to crack down on DUIs during the holidays, including St. Patrick’s Day (March 17, 2010).  This increased law enforcement will include more patrol officers on the look-out for DUIs or DWIs and will also include more sobriety checkpoints or DUI checkpoints.
Normally, the Fourth Amendment of the Constitution prohibits all random search and seizures, which would include a sobriety checkpoint where random vehicles are stopped in order to determine whether a driver is under the influence of alcohol.  However, California courts have held that sobriety checkpoints are valid if they adhere to certain standards.  Those standards were outlined by the California Supreme Court in the Ingersoll case.  Some of the requirements for checkpoints include:
1. Supervising police officers must decide and plan all sobriety checkpoints or DUI checkpoints, including site selection and procedures.  Decisions and planning for sobriety checkpoints or DUI checkpoints should not be made by field officers.
2. In all sobriety checkpoints or DUI checkpoints, a neutral mathematical selection formula must be used.  For example, the police can stop every third car or every fifth car.  It cannot be left to an officer’s discretion as to which vehicles are to be stopped.  (This formula can bypassed if there an obvious vehicle code violation observed during the checkpoint).
3. Primary consideration must be given to safety for both motorists and officers at a sobriety checkpoint or DUI checkpoint.
4. The sobriety checkpoint or DUI checkpoint must be held at a reasonable location.  Factors that affect reasonableness include whether the sobriety checkpoint or DUI checkpoint is temporary in nature, whether the checkpoint was set up as a surprise or whether there was advance warning, whether the checkpoint was a major operation or only involved a minor number of officers or staff, and whether the checkpoint had lights, signs, identifiable police vehicles and an observable uniform system for stopping cars to indicate it was a checkpoint.
5. The time and duration of a sobriety checkpoint or DUI checkpoint must be reasonable.  However, most checkpoints are held in late evening or early morning as those are the times most often associated with drunk drivers.
6. The roadblock associated with the sobriety checkpoint or DUI checkpoint must be established with high visibility, including warning signs, flashing light, adequate lighting, police vehicles and the presence of uniformed officers.  Checkpoints that have not provided adequate warnings to motorists have been found unlawful.
7. An officer at a sobriety checkpoint or DUI checkpoint can only detain a driver long enough to ask a few questions and check for signs of alcohol intoxication.  If a driver does not display signs of alcohol impairment, the driver should be permitted to drive away immediately.
8. Advance publicity should be given for each sobriety checkpoint or DUI checkpoint.  Although the California Supreme Court in Ingersoll initially held that advance publicity was a requirement, the court later held in People v. Banks, that advance publicity was not a requirement, but did constitute one factor in determining whether overall a checkpoint was legally operated.  Some agencies regularly give advance warning.  The California Highway Patrol’s 2008 Manual recommends that local CHP offices give 48 hours advance notice to the media when conducting sobriety checkpoints.

If you have been arrested for a DUI or DWI as a result of a sobriety checkpoint or any as a result of the increased police presence on St. Patrick’s day or any other day, contact our law office for a free consultation.  Fred Thiagarajah is a former Deputy District Attorney who knows the best possible defenses for a DUI or DWI charge.

Continue reading “St. Patrick’s Day Sobriety Checkpoint” »

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March 07, 2010
  California Teenage Girl’s Bones Found
Posted By Thiagarajah
14-year old Amber Dubois disappeared February 2009 and was last seen in the same area that Chelsea King was also last seen in.  Her skeletal remains were found Saturday, March 6, 2010, and her identity was confirmed through dental records.  John Albert Gardner III, the defendant accused of the murder and rape or attempted rape of Chelsea King, may also be a suspect in the disappearance of Amber Dubois.  Gardner pled not guilty on Wednesday, March 3rd, and may face the death penalty if convicted.  Gardner is a registered sex offender who was convicted of molesting a 13-year old girl in 2000.  He served five years of a 6-year prison sentence, was paroled in 2005 and completed parole in 2008.  

Rape is defined by Penal Code section 261, carries a maximum penalty of eight years state prison and require mandatory lifetime registration as a sex offender.  If you or someone you know is being charged with rape, please call our office for a free consultation with an experienced sex-defense criminal attorney.
Continue reading “California Teenage Girl’s Bones Found” »

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March 07, 2010
  Dr. Drew Stalker Pleads Not Guilty
Posted By Thiagarajah
Last Friday, March 5th, 2010, a man accused of stalking TV and radio personality Dr. Drew Pinksy pled “not guilty” to six felony counts of stalking and criminal threats in the Pasadena Justice Center of the Los Angeles County Superior Court.  Prosecutors contend that 33-year old Charles William Pearson began stalking Dr. Drew last November.  Pearson’s conduct includes threats against Dr. Drew and his family, and showing up to a Los Angeles radio station to make false accusations about the doctor.  Pearson’s bail has been increased from $150,000 to $400,000.

Stalking is a violation of Penal Code section 646.9 and the maximum punishment for stalking depends on the circumstances.  In most cases, stalking is a wobbler, which means it can be charged as either a misdemeanor or a felony.  The maximum penalty for misdemeanor stalking, in violation of Penal Code section 646.9(a), is one year in the county jail.  The maximum penalty for felony stalking, in violation of Penal Code section 646.9(a), is three years state prison.  In some cases, the maximum penalty for felony stalking is higher.  If the defendant stalked someone in violation of a restraining order, in violation of Penal Code section 646.9(b), the maximum penalty is four years state prison.  If the defendant commits stalking after having a felony conviction for domestic violence, domestic violence restraining order violation, deadly threats or stalking, then the maximum penalty is five years state prison, under Penal Code sections 646.9(c).  Finally, if the judge deems it appropriate, a defendant convicted of stalking can be sentenced to register as a sex offender pursuant to Penal Code section 290.006.

In order to prove stalking, the District Attorney’s must office must prove each of the following elements beyond a reasonable doubt:
1. The defendant willfully and maliciously harassed another person OR the defendant willfully, maliciously and repeatedly followed another person; 
2. The defendant made a credible threat with the intent to place the other person in reasonable fear for his/her safety or the safety of his/her family.
If the defendant was accused in stalking in violation of a restraining order or if the defendant’s conduct involved constitutionally protected activity, then other elements would be required.  

Criminal threats are a violation of Penal Code section 422 and is punishable by up to three years state prison.  In the order to prove criminal threats, the District Attorney’s office must each of the following elements beyond a reasonable doubt:
1. The defendant threatened to kill or cause great bodily injury to the complaining witness or a member of the complaining witness’ family;
2. The defendant made the threat orally OR in writing OR via electronic communication device;
3. The defendant intended that his/her statement be understood as a threat [and intended that it be communicated to the complaining witness]
4. The threat was so clear, immediate, unconditional and specific that it communicated to the complaining witness a serious intention and the immediate prospect that the threat would be carried out; 
5. The threat actually caused the complaining witness to be in sustained fear for his/her safety or the safety of his/her immediate family;
6. The complaining witness’ fear was reasonable under the circumstances.  

Each of these charges involve complex issues that requires an experienced criminal defense attorney.  If you are facing charges of stalking or criminal threats, please contact our office for a free consultation.  
Continue reading “Dr. Drew Stalker Pleads Not Guilty” »

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March 07, 2010
  Non-Revocable Parole
Posted By Thiagarajah

What is Non-Revocable Parole?

Penal Code section 3000.03 was recently enacted to create a new category of parolees who are to be released from prison on “non-revocable parole”.   These non-revocable parolees will be on parole for 13 months, but they will not be supervised by a parole officer and they cannot be returned to prison for violating any condition of parole.   The main differences include:

  • No parole officer supervising them
  • No parole hold can be placed on them
  • No parole violation petition can be filed against them
  • No return to prison for violating parole conditions

A non-revocable parolee will have other conditions of parole, including search and seizure without a warrant.   Although a non-revocable parolee cannot be returned to prison for violating parole conditions, certain parole violations may extend parole, such as not completing a domestic batterer’s program or paying restitution.   A non-revocable parolee may be returned for prison if found guilty of committing a new crime.

Who is eligible for Non-Revocable Parole?

  1. The person is not required to register as a sex-offender pursuant to Penal Code section 290;
  2. The person was not committed to prison for a serious or violent felony * and does not have a prior conviction for a serious or violent felony;
  3. The person was not committed to prison for a sexually violent offense* and does not have a prior conviction for a sexually violent offense;
  4. The person has not committed serious disciplinary offense in prison;
  5. The person is not a validated gang member or associate;
  6. The person has signed written notification of parole requirements and conditions;
  7. The person was evaluated using a validated risk assessment tool and determined not pose a high risk to reoffend.
What are the benefits of non-revocable parole?

  • Removing low level offenders from parole supervision but still making them subject to warrantless search and seizures;
  • Allowing the California Department of Corrections and Rehabilitation to focus parole supervision on the most serious and violent parolees;
  • Reducing the number of parolees returned to custody for parole violations;
  • Reducing the need for bed space in county jails and state prisons

More information can be found at the California Department of Corrections and Rehabilitation website at http://www.cdcr.ca.gov/Parole/Non_Revocable_Parole/index.html

Continue reading “Non-Revocable Parole” »

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February 23, 2010
  Health Care Fraud — Former Hospital Executive Sentenced on Skidrow Kickback Scheme
Posted By Thiagarajah
Yesterday, February 22, 2010, United States District Judge George H. King sentenced to Robert Bourseau, the former co-owner of the City of Angels Medical Center in Los Angeles, to 37 months in federal prison for paying kickbacks to homeless people who were recruited from “Skid Row” to undergo unnecessary medical operations.  Bourseau, 75, must also pay back $4.1 million in restitution to Medicare and Medi-cal, the organizations that paid for most of these unnecessary medical services.  In his guilty plea in June 2009, Borseau admitted to scheming with recruiters to have homeless Medicare and Medi-cal patients referred to his hospital for unnecesssary in-patient hospital stays.  The kickbacks given to recruiters were disguised in sham contracts, and Medicare and Medi-cal were billed for the unnecessary medical services.
Estill Mitts, 64, one of the recruiters who ran a Los Angeles center that referred homeless people for unnecessary medical services, pled guilty to conspiracy to commit health care fraud, money laundering and tax evasion.
Other hospital executives that pled guilty to paying illegal kickbacks for patient referrals include Dr. Rudra Sabaratnam, co-owner of the hospital and Dante Nicholson, former senior vice president at the hospital.  Vincent Rubio, former CFO of Tustin Hospital and Medical Center, has agreed to plead guilty to the same charge in a related case.
Health care fraud is a hot-button issue amongst federal and state prosecutors, especially given the recession and the national spotlight on uniform health coverage.  If you or anyone you know has been accused of health-care fraud, it is important that you consult with an experienced attorney as soon as possible.  In fact, even if you have been or are engaged in health-care fraud, and have yet to be accused of a crime, you should contact an attorney that will help you minimize your liability and possibly work out a deal ahead of time.  Contact our Law Offices for a free consultation. 
Continue reading “Health Care Fraud — Former Hospital Executive Sentenced on Skidrow Kickback Scheme” »

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February 22, 2010
  High School Spies on Students Through Laptops
Posted By Thiagarajah
Last week, a Pennsylvania high school student sued his local school district after discovering that they were monitoring his computer use at home and spying on him through the webcam at home of his school-supplied laptop.  The issue, as it pertains to criminal law, is whether any evidence of illegal activity can be used in court with such a search.  Our conclusion is that this type of school search is illegal and any evidence found would have to be suppressed as fruit of the poisonous tree.
Normally, when a government agency wants to search your person or property, it either needs your consent or a warrant.  However, the US Supreme Court has carved our exceptions, under certain circumstances, for searches to be conducted without permission and without warrants.
One exception allowed by the US Supreme Court is the search of students and their lockers by school officials.   In the case of New Jersey v. TLO (1985) 469 US 325, the Supreme Court decided that the need for teachers and administrators to maintain order in the schools outweighed the privacy interests of students.   However, the Supreme Court made it clear that searches by school officials are only justified “when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of school.”   In In re William G. (1985) 40 Cal.3d 550, 564, the California Supreme Court expanded upon this by stating that any “reasonable grounds” must be supported by “articulable facts”; searches based on hunches or rumors  and random searches were not justified.   Furthermore, the US Supreme Court also stated that the manner in which the search is conducted must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
In determining whether a school search is illegal, there are other factors that the courts take into account, including the nature of the suspected violation, who reported the violation, time & place of the violation, and whether a specific student or group of students were identified as the perpetrators of the violation. 
In the case at hand, there are two big problems facing the school.  The first is that the search was conducted at the student’s home as opposed to his school.  Under the Supreme Court ruling in New Jersey v. TLO, the Court ruled that school officials had an interest in maintaining order at school that outweighed the privacy interest of a student at school.  However, a school’s right to order drops dramatically off of campus grounds and a student’s right to privacy jumps up dramatically while at home.  There is no legitimate interest school officials can claim in monitoring student activity at home and any interest claimed cannot possibly outweigh the privacy interest of a student at home. 
The second problem is that there was no violation suspected before the search.  The courts have made it clear that searches cannot be conducted randomly.  Yet, in this case, that’s exactly what happened.  The school was monitoring computer use of all students and then sifting through their computer use to find evidence of a violation.  The law requires that there must be evidence of a violation first before a search can be conducted by school officials.
Although this case happened in Pennsylvania, it is clear that school officials are getting bolder in conducting searches everywhere, including California.  If your son or daughter has been accused of a crime as the result of a school search, the evidence may have been obtained illegally.  Contact our office for a free consultation so you can know your children’s rights.

Continue reading “High School Spies on Students Through Laptops” »

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February 15, 2010
  Miranda Warnings Apply to Terrorists
Posted By Thiagarajah
For a great article on how and why Miranda warnings apply to terrorists, you should review this article by David Coleman, the recently retired Public Defender of Contra Costa County.  http://www.huffingtonpost.com/david-coleman/you-have-the-right-to-sil_b_462973.html. 
Continue reading “Miranda Warnings Apply to Terrorists” »

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February 12, 2010
  Possession of a Deadly Weapon — Metal Knuckles
Posted By Thiagarajah
Penal Code section 12020(a)(1) prohibits a person from possessing a variety of deadly weapons, including metal knuckles.  This crime is a wobbler which means that it can be charged as a misdemeanor (maximum punishment one year in jail) or a felony (maximum punishment three years state prison).  Recently, the California Supreme Court limited what constituted metal knuckles in In re David V.  In this case, a minor was caught with a bicycle footrest in his pocket and was subsequently convicted of Penal Code section12020(a)(1) for possessing metal knuckles. However, the California Supreme Court has ruled that a bicycle footrest does not constitute metal knuckles because the item isn’t a device worn in or on the hand.
Continue reading “Possession of a Deadly Weapon — Metal Knuckles” »

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February 08, 2010
  Police Are Allowed To Lie
Posted By Thiagarajah
It is well settled area of law that police are allowed to lie to suspects during the course of their investigation.  However, a recent case has taken this situation one step further.  In People v. C.S.A., the defendant had a pending criminal case and several probation violations, when he made a deal with the police.  The police promised to make his cases “go away” if he provided them with certain information.  The defendant lived up to his end of the deal, but the cases never went away.  The court ruled that the police never had the authority to make this deal in the first place. 
This type of scenario is very common in cases where a person is accused of drug sales.  The police will often promise to have the charges reduced or dropped if a suspect is willing to snitch on other drug dealers or even do controlled buys for the police.  This is a dangerous practice that many people choose to do because they rely on the promise of the police that their charge will be dismissed.  The only agency that can reduce or dismiss the charges is the District Attorney’s Office.  If  you are accused of drug sales and the police lean on you for information or promise to make your charges “go away”, you should contact an attorney as soon as possible.  A proper deal can only negotiated with the District Attorney’s office.
Continue reading “Police Are Allowed To Lie” »

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February 02, 2010
  Michael Jackson’s doctor to be charged with manslaughter
Posted By Thiagarajah
The Los Angeles County District Attorney’s office plans to charge Michael Jackson’s doctor, Dr. Conrad Murray, with manslaughter. California Penal Code section 192 defines manslaughter as “the unlawful killing of a human being without malice”.  There are three types of manslaughter — voluntary, involuntary and vehicular.  Voluntary manslaughter, a violation of Penal Code section 192(a), usually applies upon a sudden quarrel or during the heat of passion.  Voluntary manslaughter is a felony that carries a sentence range of 3-6-11 years.  Involuntary manslaughter, a violation of Penal Code section 192(b), can be committed during the commission of any unlawful non-felony act OR in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.  Involuntary manslaughter is a felony that carries a sentence range of 2-3-4 years.  Vehicular manslaughter involves an act of driving and depending on the circumstances, can be charged as either a felony or a misdemeanor.
If the Los Angeles County District Attorney’s Office files manslaughter charges against Dr. Conrad, then it will most likely be involuntary manslaughter.
Continue reading “Michael Jackson’s doctor to be charged with manslaughter” »

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January 29, 2010
  Minor Asking for Parent Does Not Invoke Miranda
Posted By Thiagarajah
In 2010, California law changed as to whether a minor’s request for a parent, during a police interrogation, is the same as a request for a lawyer.  In years past, if a minor asked for his/her parent during police questioning, the courts held that the request for a parent was the equivalent of a request for a lawyer (which is an invocation of your Miranda rights), and the police interrogation must end.  That is no longer the case.   In People v. Lessie (2010), the California Supreme Court ruled that asking for a parent is NOT automatically the equivalent of asking for a lawyer, and therefore police questioning can continue even if a minor requests a parent.  This holding is now consistent with US Supreme Court law as well.  In determining whether a child’s request for a parent is a Miranda invocation, the courts must now look at the totality of the circumstances, including the juvenile’s age, background, experience, education, the capacity to understand his/her rights and the consequences of waiving those rights.  Furthermore, although juveniles are entitled to two complete phone calls within the first hour of being taken into temporary custody — pursuant to Welfare and Institutions Code section 627(b) — a violation of this right is not a Constitutional violation and does not affect the admission of a confession.

The bottom line — It is important to teach your children that if they are ever questioned by the police, they should ask for a parent AND their lawyer, especially since the police may not allow them to make phone calls before the interrogation.  Furthermore, if you are ever contacted by the police regarding your child, please contact our office immediately, so we can help defend them.  If the police suspect your child of a crime, do not let them speak to your child without an attorney present.  The police are not looking out for your child’s best interests in this type of situation.
Continue reading “Minor Asking for Parent Does Not Invoke Miranda” »

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January 26, 2010
  Hofsheier Rule for Statutory Rape Cases
Posted By Thiagarajah
Statutory rape involves an adult (18 years or older) having sexual relations with a consenting minor (17 years or younger).  Although statutory rape traditionally refers to intercourse, there are several laws that prohibit all types of sexual contact between an adult and a minor.  Penal Code section 261.5 prohibits intercourse between an adult and a minor.  If the age difference is 3 years or less, the crime is misdemeanor.  If the age difference is more than three years, the crime is a wobbler (can be charged as a misdemeanor or felony).  Statutory rape involving oral sex or sodomy are prohibited by Penal Code sections 288a and 286.
Although consensual sex with a minor is always illegal, only oral sex and sodomy require lifetime registration as a sex offender pursuant to Penal Code section 290.  However, in the case of People v. Hofsheier, the California Supreme Court ruled that in cases involving oral copulation with a minor where the minor is at least 16 and there is less than 10 years age difference, the court has the discretion not to impose lifetime sex registration.  The reasoning behind this ruling was that the law was being applied unfairly because an adult could have sex with a minor (under certain situations) without having to register as an offender, but would have to register if the adult received oral copulation from a minor (under the same circumstances).
Although the Hofsheier rule allows defense attorneys to work with DAs and judges to negotiate deals that don’t involve lifetime registration as a sex offender, the Hofsheier case doesn’t require DAs or judges to remove registration.  So it is important to hire an attorney that is familiar with sex cases in order to negotiate the best deal possible and in order to fight the case if negotiations don’t work out.
Our office used the Hofsheier rule to obtain deals that don’t involve lifetime registration.  In People v. S.H., our client ultimately pled guilty to four counts of felony Penal Code section 288a(b)(1) — oral copulation with a minor, and one count of attempted oral copulation with a second minor.  Our client was 26 and the first victim was 16.  When our client turned 28, the second victim was 15.  However, through extensive negotiations with the District Attorney’s Office, we managed to obtain a deal that didn’t involve any prison time or any registration as a sex offender.
Continue reading “Hofsheier Rule for Statutory Rape Cases” »

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