October 2012 Archives

Mental Competency At Issue In California College Shooting Case

October 21, 2012,

The Associated Press reported this week that the murder case of One Goh was suspended on Monday after Goh's attorney questioned his mental competency. Goh has been charged with seven counts of murder and three counts of attempted murder as a result of an April 2nd. He pleaded not guilty.

The shooting spree occurred in Oakland at Oikos University. The University is a small Christian college founded to help Korean immigrants adjust to life in America. Goh is a former student who prosecutors believe planned the attack over a tuition dispute with the school. Goh fled the campus after the shooting in one of the victim's cars. He was arrested in Alameda shortly after fleeing but not before he confessed to a supermarket security guard that he had just shot several people. Due to the circumstances surrounding the shooting, Goh would be eligible for the death penalty if convicted.

The hearing on Monday was supposed to be a routine preliminary hearing, but the assistant public defender representing Goh told the Alameda County Superior Court judge that Goh refused to speak to him and that he wanted a mental evaluation to determine if Goh is competent to stand trial.

What Does it Mean to be Incompetent to Stand Trial?

The California Penal Code addresses this question in CAL. PEN. CODE § 1367 and CAL. PEN. CODE § 1368. The statute defines someone who is mentally incompetent to stand trial as someone who as a "result of mental disorder or developmental disability" is "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." The defendant must understand that he or she committed a crime and that the court proceedings are in response to his or her actions. If a defendant is charged with a crime, but he cannot explain what he did a trial then he might be deemed incompetent. The second part of that definition is also important because everyone has the right to counsel. A paranoid defendant on trial for a criminal offense might not be competent to stand trial if due to his or her paranoia he or she does not trust the attorney and therefore refuses to assist with the defense. Based on the reports, that is the situation the court is faced with concerning One Goh.

The developmental disability might be easier to prove since that would be something previously detected and noted. Examples of this would include autism, mental retardation or epilepsy.

How is Incompetency Determined?

Penal Code 1368 describes the process through which mental competency is determined. The judge asks the defense attorney if he or she thinks the defendant is incompetent. If the attorney says yes, then the judge is required to suspend the proceedings and order a competency hearing. Even if the attorney says no, the judge may still suspend the proceedings and order a hearing if the judge thinks the defendant is incompetent despite the attorneys answer to the contrary.

The defense attorney must present "substantial evidence" that the defendant is incompetent. Basically this means that the evidence is strong enough to raise a reasonable doubt in the judge's mind of the defendant's competence. If this evidence is presented and accepted, the judge will order a competency hearing which will be before either a judge or jury.

What Happens Next?

If the defendant is found competent, then the trial begins again. If the defendant is found incompetent, then the defendant is ordered to undergo psychiatric treatment.

A defendant may regain competence after undergoing treatment. If this occurs, the criminal trial picks up where it left off.

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Los Angeles City Council Repeals Ban On Medical Marijuana Dispensaries

October 17, 2012,

This month the Los Angeles City Council voted to repeal a recent ordinance banning the operation of medical marijuana dispensaries within the city. According to an LA Times story, activists collected tens of thousands of signatures to qualify a referendum repealing the ban, forcing the Council to rescind the ordinance or place the issue on the March ballot.

California became the first state to legalize medical marijuana through the 1996 passage of Proposition 215, also known as the "Compassionate Use Act." Prop 215 removed state criminal penalties for the use, possession and cultivation of marijuana by individuals possessing a "written or oral recommendation" from a licensed physician that the person "would benefit from medical marijuana." Individuals suffering from illnesses such as cancer and arthritis where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician" qualify for protection under Prop 215.

In 2004, the California Legislature passed Senate Bill 420, which imposed state guidelines stating how much medicinal marijuana a person could legally grow and possess. Under SB 420, an individual could legally possess up to eight ounces of dry marijuana and six mature marijuana plants. An exception was allowing individuals to possess greater quantities marijuana with the recommendation of a physician.

SB 420 also permitted individual counties and municipalities to pass local ordinances allowing individuals to possess larger amounts of medicinal marijuana than allowed under state law. Finally, and most importantly to this issue, SB 420 granted legal protection medicinal marijuana dispensaries, by providing:

Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

Despite the fact that operating a marijuana dispensary is once again legal in Los Angeles, as well as other parts of California, under federal law, specifically the "Controlled Substances Act", marijuana is still classified as a Schedule I drug. This means that, even if a person is legally growing or possessing marijuana under California state law, he is still in violation of federal law.

Given that California and federal law are at odds, and that each county and/or municipality in the state is free to adopt its own ordinances, medical marijuana users can be subjected to prosecution even if qualified to possess the drug legally.

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California's Prop 36 Puts Three-Strikes Law Back On The Ballet in November

October 16, 2012,

The Recorder published a story regarding Stanford Law School lecturer, Michael Romano, and his mission to overhaul California's controversial three strikes law. Launched in 2006 by Romano, the Three Strikes Project is a Stanford law school student-run organization charged with representing inmates serving life in prison under the three strikes law.

California's three strikes law was passed in 1994 in the wake of the murders of 18-year old Kimber Reynolds and 12-year-old Polly Klaas by men with criminal records. Codified at California Penal Code Section 667(b), three strikes is a criminal sentencing scheme that imposes substantial additional prison time to sentences of certain repeat offenders. Specifically, Section 667(b) states:

It is the intent of the Legislature in enacting subdivisions(b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.

Under the three strikes law, if a person is convicted of any felony, and has two or more prior convictions qualifying as "strike" offenses, the judge must impose a sentence of at least 25-years-to-life. It is important to note that the law also applies to "second strikers" and requires a judge to sentence a person to twice the stated prison term on the current charge if they have a prior strike.

Upcoming Vote
On November 6, 2012, California voters will be given an opportunity to vote on Proposition 36, a measure drafted by Romano, Stanford law professor David Mills, and NAACP Legal Defense and Educational Fund attorney Jeffrey Robinson. Proposition 36 would eliminate the 25-to-life sentence in cases where the defendant's recent offenses are classified as "nonserious" or "nonviolent." However, offenders previously convicted of an "extremely violent" offense, e.g. rape or murder, would still be subject to a life sentence. Further, Prop 36 would allow individuals currently serving life sentences under the three strikes law to apply to be resentenced if their third strike was a nonserious or nonviolent crime.

According to the Recorder's story, approximately 9,000 inmates are currently serving life sentences under three strikes; of those only 2,800 would be eligible for reduced sentences under Prop 36. The California Legislative Analyst's Office has concluded that Prop 36 would have a much greater economic impact, saving California an estimated $70 million a year by reducing the number of inmates. Opponents of sentencing reform counter Prop 36 supporters by claiming that savings on housing prisoners will be negated by the additional cost of dealing with released inmates who re-offend.

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9th Circuit Court of Appeals Considers Habeas Corpus Petition in Murder Case

October 15, 2012,

The Recorder reported on the status of convicted killer Ronald Deere's habeas corpus petition pending before the Ninth Circuit Court of Appeals. The situation is a reminder of the complexity of the criminal justice system, the long-time frames involved in some cases, and the critical nature of receiving effective counsel.

According to the story, in 1982 Deere shot and killed his girlfriend Cindy Gleason's brother-in-law, Don Davis, and Davis' two children, Michelle and Melissa Davis, in Blythe, California. When brought to trial, Deere informed Riverside Deputy Public Defender Glenn Jones, his trial attorney, that he didn't want a defense. Jones sought and received a psychological evaluation for Deere but did not have him evaluated for competency.

Deere pled guilty to the murders and waived his right to appear at the penalty phase of the proceedings. Deere was found guilty and sentenced to death; however, on appeal to the California Supreme Court, Deere's conviction was reversed because Jones failed to present any mitigating evidence. At Deere's second trial in 1986, Jones again failed to present any mitigating evidence. Judge Fred Metheny appointed an independent attorney to represent Deere, however, Deere was again found guilty and sentenced to death. On appeal, the California Supreme Court affirmed the conviction.

Sixteen years later, in 1998, the Ninth Circuit Court of Appeals ordered that a hearing be conducted to determine Deere's competency based on the fact that the psychiatrist that originally evaluated Deere was not board-certified and lied about knowing Deere. Based upon the Ninth Circuit's decision, a United States District Court judge ordered Deere to submit to the psychiatric examination so she could make a decision regarding his competency. Despite Deere refusing to submit to psychiatric evaluation, Judge Snyder determined that Deere had not received effective assistance of counsel.

Monday, Deere's attorneys presented oral argument to a three-judge panel of the Ninth Circuit Court of Appeals in support of Deere's petition for habeas corpus. The panel appeared to be divided on the issue of whether Jones rendered ineffective assistance of counsel to Deere at both his trials by failing to present any defense.

Appearing in favor of a determination that Deere's counsel was deficient, Judge William Fletcher questioned why Jones would have allowed the judge who had already sentenced Deere to death once before, again preside over the penalty phase of the case instead of attempting to get a different judge.

Judges Barry Silverman and Johnnie Rawlinson were not as receptive to the arguments of Deere's attorney. At one point during the proceedings, Silverman asked Deere's habeas attorney, "Why couldn't he [Deere] rationally conclude that he wanted to take responsibility for what he did?" Deere's attorney, Michael Satris, responded, "That's not what's going on here," maintaining that Deere suffers from a psychological disorder that compels him towards self-destruction.

It will be interesting to see how the federal appeals court ultimately comes out on this case. Questions about effective counsel are always difficult to parse through, but critical to ensuring the criminal justice system operates as intended.

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Common California DUI Defenses

October 13, 2012,

The Washington Post reported that actor Michael Madsen was released from the hospital following an arrest on suspicion of drunken driving in Malibu, California.

Madsen's attorney contended that, prior to the arrest, Madsen was taking prescription drugs that may have resulted in a faulty sobriety test. The case is a good reminder that in California there are numerous ways in which an experienced attorney can challenge charges of drunk driving. The following are some common defenses to DUI charges.

1. Challenging the Traffic Stop and/or Arrest
The Fourth Amendment to the United States Constitution prohibits law enforcement from conducting "unreasonable searches and seizures." Any time a police officer stops a vehicle, the driver is considered to have been "seized" under the law, and the government is required to prove that the officer had a reasonable suspicion that the driver was engaging in criminal activity so as to warrant the stop. Further, if the driver is arrested, the government must demonstrate that there was "probable cause" to support the arrest.

An experienced DUI attorney will be able to recognize a defective stop or arrest as well as the grounds upon which the stop/arrest could potentially be challenged. For example, if an individual is stopped by a police officer, but the officer did not observe a traffic violation, there would be grounds to challenge the stop.

Assuming, however, that the stop itself was valid, i.e. the person was speeding, weaving, etc., the individual may still have grounds to challenge his or her arrest. Generally, in the context of arrests for DUI, one indicator of intoxication alone, such as the smell of alcohol or bloodshot eyes, will be insufficient to establish probable cause to arrest.

2. Challenging an Interrogation
Once a person is place under arrest, law enforcement officials are required to read the arrestee his or her Miranda Rights. Miranda warnings have to convey the following: the person has the right to remain silent, anything said can be used again the person in court, and the person is entitled to legal representation.

If an arrested person is not advised of his or her Miranda Rights and the police question that person, any statements made by the person during that interrogation could not be used against that person by the government to prove the charges.

3. Challenging Blood Alcohol and/or Breathalyzer Tests
One of the most common ways of contesting DUI charges is to challenge blood, urine, or tests performed by law enforcement. There are many problems with blood, urine, and breath testing. Challenging these types of tests often requires intimate knowledge of statutory requirements and procedural issues.

For instance, California law requires that law enforcement and medical personnel comply with certain conditions to ensure the accuracy of blood test results. These conditions are outlined in California Code of Regulations Title 17, and include: that the blood draw site be sterilized with a non-alcohol-based product, that the drawer maintain certain levels of anticoagulants and preservatives in the sample, and properly storage of any sample. The failure to comply with any of these, and other conditions, may result in the invalidation of any blood test.

4. Plea Bargaining
Sometimes the most effective way an experienced DUI attorney can help a defendant is to negotiate with the prosecuting attorney to reduce the charge and/or penalties. Successful plea bargaining usually results in the defendant entering a guilty plea to a lesser traffic offense, such as reckless operation, which carry substantially lesser penalties and the added benefit of not having a DUI conviction.

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Van Nuys, California Gynecologist Alleged To Have Sexually Assaulted Patient

October 11, 2012,

Permanent stigma and loss of employment are just two of the many consequences (beyond fines and jail time) that come with a sex crime conviction. Action is obviously needed to curb these crimes, but the universal revulsion at the crime should never lead to abdication of the need to ensure all criminal defendants have their rights protected every step of the way.

The Los Angeles Times reported that Kevin Pezeshki, 43, of Tarzana, California and a licensed gynecologist, has been charged with two counts of sexually assaulting one of his patients during an exam at a local hospital. Pezeshki will appear in court for the first time following his arrest last month. According to authorities, there in an ongoing investigation into whether Pezeshki has other victims.

Pezeshki is alleged to have inappropriately touched a female patient during a Sept. 9, 2008, exam at Northridge Hospital Medical Center. According to court records, the alleged victim claims that she turned around and she saw Pezeshki zipping up his pants.

The victim further alleged that following a subsequent surgery, during a hospital visit, Pezeshki began "hitting her on her back", groping her, "and then ejaculated on her bed sheets." The woman later brought the bed sheet to police who matched DNA on it to Pezeshki.

Pezeshki has most likely been charged with some type of sexual battery in violation of California Penal Code ("CPC") Section 243.4. For example, CPC 243.4(e)(1), which defines misdemeanor sexual battery, provides:

Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

However, if prosecutors believe they can show that Pezeshki improperly touched the alleged victim under the guise of his position as her doctor, Pezeshki might be charged under CPC 243.4(c), defining one of several types of felony sexual battery, which provides:

Any person who touches an intimate part of another person for the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

Sex crimes in California are taken very seriously and often carry extremely harsh penalties. Further, such crimes perpetrated by individuals in positions of trust, such as doctors or attorneys, are often pursued more aggressively. Some individuals, such as gynecologists are inherently in a position where these sorts of accusations might be made. This is not to suggest that doctor in this case has been wrongly accused. But, it is a reminder that a full criminal defense is provided in these cases so that we can be sure any chance of wrongful conviction is avoided.

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