December 2012 Archives

Los Angeles Involuntary Manslaughter Case Involves Death of Firefighter

December 24, 2012,

The Los Angeles Times reported that fire safety expert Dale Feb is expected to testify at a preliminary hearing in the criminal case against forty eight year old Gerhard Becker, a German national and architect, who has been charged with one count of involuntary manslaughter in the death of forty-year veteran of the Los Angeles Fire Department, Glenn Allen. Becker stands accused of negligently installing fireplaces designed for outdoor use inside his Hollywood Hills mansion that caused a massive fire at the residence.

Over eighty LAFD firefighters responded to the blaze on the night of February 16, 2011, with nineteen becoming trapped as it spread throughout the home. As the fire progressed, the ceiling collapsed, dumping hundreds of pounds of plaster and lumber on Allen. Other firefighters immediately came to Allen's aid, using chainsaws to dig him out, however, he was not breathing by the time he was rescued. Allen was resuscitated at the scene and rushed to a nearby hospital, but died two days later.

Fire inspectors discovered that Becker had installed four outdoor fireplaces inside his home after its final inspection that allegedly lacked required firebreaks to stop flames from spreading out and were constructed with combustible materials. According to a search warrant drafted by Los Angeles Police Detective Gregory Stearns, "If these fireplaces were present at final inspection of the residence, the inspection would not have been approved. As constructed and installed, they constitute a present, extreme, immediate and imminent hazard."

In California, involuntary manslaughter is defined by Penal Code Section 192(b) as an unlawful killing of a human being "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."

An "unlawful act" is either a misdemeanor or an infraction, and is not necessarily something that is inherently dangerous. An act performed "without due caution and circumspection" is essentially the same thing as criminal negligence, i.e. an act which is "aggravated, reckless and flagrant and which is such a departure from what would be the conduct of an ordinary prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such an act." Involuntary manslaughter carries a maximum penalty of four years in prison and a $10,000 fine.

As this case shows, while rare, these criminal charges can be filed even in unique cases like this one. However, those charged often have very strong legal defenses--merely making a mistake is not always enough to be convicted of a crime.

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Recent Study Finds That California Drivers More Likely To Drive High Than Drunk

December 17, 2012,

According to a recent survey conducted by the California Office of Traffic Safety, drunk drivers may not be the biggest problem facing law enforcement in patrolling the state's highways. The survey tested 1,300 drivers in nine California cities on Friday and Saturday nights, finding that fourteen percent were under the influence of drugs, while only approximately seven percent were under the influence of alcohol. Marijuana, found in 7.4 percent of drivers, was more common than 7.3 percent for alcohol, 4.6 percent for other illegal drugs, and 4.6 percent for prescription or over-the-counter medications.

A statement released by the Director of the Office of Traffic Safety, Christopher Murphy, opined that the study's "results reinforce our belief that driving after consuming potentially impairing drugs is a serious and growing problem." The press release continues, explaining that, likely due to the added expense of testing, driving under the influence of drugs is under-reported and under-recognized.

In response to this issue, the Office of Traffic Safety and the California Highway Patrol have been providing law enforcement with specialized training to detect and apprehend drug-impaired drivers. Further, District Attorney's offices in 20 counties have created "vertical prosecution" teams that follow drug-impaired driving cases from arrest through trial and the Regional Traffic Safety Resource Prosecutors are training District Attorney's on techniques to prosecute such cases.

Unfortunately, these new efforts might mean that even more community members in our area will unnecessarily face serious long-term challenges as a result of more aggressive criminal prosecutions.

Opponents of these new initiatives claim that, in at least some circumstances, driving under the influence of drugs is not as dangerous as driving drunk. Maia Szalavitz of Time Magazine recently wrote an article entitled "7% of California Drivers Test Positive for Marijuana, but Are They Impaired?" wherein she stated that, "Research suggests that stoned users on the road are not as impaired as those who drink alcohol are, and there is some evidence that those who use marijuana, particularly for medical purposes, may be staying off the roads anyway."

According to Szalavitz's article, there still remains a question as to whether individuals who have tested positive for marijuana remain under the effects of the drug at the time they are driving. A review of data performed by Canadian researchers found that driving within three hours of using marijuana was associated with a 92% increased risk of fatal or near-fatal accidents. However, even though Tetrahydrocannabinol ("THC"), the active ingredient of marijuana, can remain in blood and saliva a variable amount of time after use, the "high" only lasts three to five hours.

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California Residents Pass Proposition 36 Modifying "Three Strike" Sentencing Scheme

December 10, 2012,

Back in October, I blogged about Stanford Law School lecturer, Michael Romano, and his efforts to change California's controversial three strikes law. As discussed in the previous post, three strikes was passed in 1994 and is a criminal sentencing scheme that imposes substantial additional prison time to sentences of certain repeat offenders.

Under the three strikes scheme, 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. In certain circumstances, 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.

Yesterday, California voters passed Proposition 36, a measure drafted by Romano, Stanford law professor David Mills, and NAACP Legal Defense and Educational Fund attorney Jeffrey Robinson, eliminating the 25-to-life sentence in cases where the defendant's recent offenses are classified as "non-serious" or "nonviolent" but leaving life sentences in place for offenders convicted of an "extremely violent" offense such as rape or murder. Prop 36 also allows individuals currently serving life sentences under the three strikes law to apply to be resentenced if their third strike was a non-serious or nonviolent crime.

Opponents of Prop 36 argue that Three Strikes served a valid purpose, to keep violent repeat offenders off the streets. In a position paper opposing Prop 36, the California District Attorneys Association opined that "The current Three Strikes law has directly and significantly acted to reduce crime in California. Three Strikes law is a valuable, essential, and proven tool in the fight against crime."

However, those of us that supported Prop 36 know that the initiative will save California at least $100 million each year as a result of fewer parole hearings, shortening of lengthy prison terms for current inmates, and a decrease in California's overcrowded prison population.

Perhaps most important to the Prop 36 movement is that it will prevent offenders from receiving unfair prison sentences for minor crimes.

Los Angeles County District Attorney Steve Cooley, Santa Clara County District Attorney Jeff Rosen, and San Francisco District Attorney George Gascn, were among the supporters of Prop 36. According to Cooley, "The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime."

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California Appeals Court Rules In Favor Of Parent Who Uses Medical Marijuana, Reversing Order For DCFS Intervention

December 9, 2012,

Dec10 Press Release Law Office of Lauren K Johnson CA Pot Case.pdf

California Appeals Court Rules In Favor Of Parent Who Uses Medical Marijuana, Reversing Order For DCFS Intervention

Defense Attorney Lauren K. Johnson Prevails in State Appellate Court Case Setting Limits on Laws Separating Children From Their Parents That Use Marijuana for Medical Reasons

Irvine, Calif., December 11, 2012 -- Lauren K. Johnson, an attorney with law offices in Irvine, California today announced a hard-fought appeals court victory regarding parenting and medical marijuana use. In the case of Drake M. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor's approval, isn't necessarily a drug abuser.

Being hailed as precedent-setting, the Appellate Court's ruling further clarifies child welfare law as applied in such cases, and represents a very significant victory for both the appellant and his legal counsel.

"The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states," says Johnson. "We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm."

In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the "mere usage of drugs," including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court. The court held that substance must either be diagnosed by a doctor or show up in a person's behavior, such as absences or poor performance at work or at school, driving under the influence, or recurrent social or interpersonal problems. The Appellate Court emphasized that none of that happened in this case.

The father had testified that he uses medical marijuana for arthritis about four times a week, and does not use it in front of his child or care for the child while under the influence. He has been employed for many years and is capable of supporting his child, the court found.

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California Voters Voted Down Death Penalty Initiative Proposition 34

December 6, 2012,

The Recorder published a story regarding California's Proposition 34, also referred to as the "Death Penalty Initiative Statute" that appeared on the November 6th ballot. Prop 34 would have repealed the death penalty as the maximum punishment for murder, replacing it with life imprisonment without parole. Prop 34 would have also required defendants found guilty of murder to work while in prison and apply their earnings towards victim restitution.

Current State of Executions in CA
California has not carried out any executions since 2006, when U.S. District Judge Jeremy Fogel determined that there were significant flaws in the state's execution process. Judge Fogel made his decision after death row inmate Michael A. Morales argued that the officials tasked with carrying out executions at San Quentin prison were not properly trained and the poor conditions of the death chamber amounted to cruel and unusual punishment. Following several hearings and a personal inspection of San Quentin's execution facility, Judge Fogel ruled in Morales v. Tilton, that reform of the execution procedures was needed, writing that California's procedure for "lethal injection is broken, but it can be fixed."

Reacting to Judge Fogel's opinion, the California Department of Corrections and Rehabilitation overhauled its execution procedures and updated its facilities. However, various challenges in state and federal courts have blocked California from carrying out any executions during the last six years. In fact, in 2010, California attempted to execute Albert Greenwood Brown with a single dose of sodium thiopental, but the Ninth Circuit Court of Appeals stopped the execution based on California's failure to adopt a single-drug injection procedure.

Surge Coming?
Some individuals foresee a situation mirroring that which has occurred in Arizona in recent years. For almost ten years, Arizona didn't carry out any executions due to disputes over death penalty procedures. However, since resuming executions in 2010, Arizona has executed 10 men in two years, more than any state but Texas. When asked whether, in the wake of a rejection by voters of Prop 34, could California see a dramatic increase in the number of executions, Berkeley attorney Cliff Gardner stated, "It could happen. I think it's definitely plausible. Has California ever seen anything like it? Not in our adult lifetimes. It may shock some people and may please others."

According to the California Department of Corrections and Rehabilitation, California currently has 726 individuals on death row. The Recorder reports that, of that group, fourteen have exhausted their habeas corpus claims and could be executed once the legal challenges to California's current execution procedures have been resolved.

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