Orange County Criminal Attorney Blog

New Jersey teen Khaliah Fitchette was riding a public bus when police boarded with the intent to remove a drunken man. When Fichette began filming the incident with her cell phone, one of the officers told her to turn off the phone. When she refused, she was placed in handcuffs, removed from the bus and placed in a patrol car for 2 hours while police officers deleted images from her phone. The young girl's family, with the help of the ACLU, has filed a lawsuit against the Newark Police Department.

This is not an isolated incident. Anthony Graber was riding his motorcycle when he was pulled over. The officer who pulled Mr. Graber over was an off-duty officer in an unmarked vehicle. Without first identifying himself as a police officer, the individual drew his firearm and ordered Graber off his motorcycle. Only after the above did he identify himself as state police. Mr. Graber recorded the incident through his helmet camera and posted it to UTube when he got home. Subsequently, Mr. Graber was charged with violating the state's wiretapping statute. Charges were eventually dismissed.

A person might ask what does a police officer have to be afraid of if he is performing his duties as he should be in public? The Fraternal Order of Police seems to think that since police officers move quickly, they don't give a lot of thought as to what the adverse consequences to them might be. Further, anything that is going to have an chilling effect on a peace officer moving, such as apprehension he/she is being taped, could cost the officer or some citizen their life or physical well-being.

The Fraternal Order has pushed for laws which would imprison people taping police officers. Cities like Chicago have made it felony to tape a police officer.

Videotape is an important way to preserve evidence. Police use it against citizens all the time. It is pretty obvious why some officers don't like being recorded. They do not want anyone to see what they are doing. Without video, most police misconduct cases would likely be thrown out. If it is just a citizen's word against a police officer's word, the police officer will almost always prevail, without some additional evidence such as video.

What would the citizens of Los Angeles have thought after the Rodney King video was published if the LAPD began to push for the criminalization of anyone videotaping a police officer? Citizens would have viewed such an effort as an abomination meant only to shield wrongdoing by police.

Police should be thankful they are being videotaped. This way there will be no false claims of police misconduct. An officer, when he begins every shift, will know he must act appropriately. By always behaving as if he/she is on video, incidents of police misconduct will be fewer.

Gabriela Morales and her boyfriend, Alberto Guzman, are on trial for the murder of 4-year-old Brandon Morales. Brandon Morales, son of Gabriela Morales, died of brain injuries allegedly inflicted by the pair. Both Morales and Guzman face 25 years to life in prison.

Whereas the People argued mother and boyfriend were equally guilty, attorneys for Morales countered she was also a victim of Guzman. She was immobilized by fear of losing her children or being deported said Morales's attorney Celia Laureles.

Prosecutor Larry Yellin said both were insidious child abusers. Testimony submitted during the trial indicated the child had been severely abused for a very long period. Paramedics arrived at the residence in May 2008. The mother had summoned the paramedics for help but, by the time they arrived, it was too late. The child was pronounced dead at St. Joseph's Hospital in Orange.

Prosecutors have argued Morales had a duty to protect Brandon from the continual abuse by Guzman, but she did not.

These types of cases are the most heart-breaking in the criminal justice system. When an innocent child's life is brutally ended by someone responsible for his/her safety, people ask "How could this happen?" There is no easy answer. All that is left is to hope justice will be served.

Antonio Nunez was sentenced to 5 life terms plus 100 years after he sprayed police with AK-47 fire during a kidnap attempt at age 14. Nunez would have been unable to seek parole for 175 years.

A California Appeals Court, however, ruled it was unconstitutionally harsh to sentence a juvenile to life without even the possibility of parole. Nunez has been in custody since 2001. The appellate court's decision is based upon a United States Supreme Court case which set aside a life sentence in a juvenile, non-homicide case.

The Appeals Court sent the case back to the lower court for resentencing. This will be the second resentencing. Nunez was originally given 1 life without the possibility of parole sentence, 4 life sentences and 111 years. The original sentence was also overturned.

Although some may hail this decision, the actual result may not be great. There has yet to be a determination as to how many years a juvenile should serve before he/she becomes eligible for parole. Is it 20, 30 or 40 years? Regardless of the amount, Mr. Nunez will likely be a very old man before he is released from prison.

A judge has recommended New Jersey State Trooper Sheila McKaig receive a 7 month suspension because she was stopped three times while driving after drinking.

It was reported all three stops occurred within a 3 month period. Although peace officers suspected Trooper McKaig had been driving under the influence, she was never tested, arrested or even issued a citation. Rather, after one incident, Trooper McKaig was transported to the police station and subsequently given a ride home by an officer from her department. No disciplinary action was originally instituted.

The present action only started when a letter alleging a cover-up began circulating at headquarters. Apparently, the way the situation was handled is under investigation.

This story is not really about an officer who used poor judgment and drove three times when she may have been under the influence. This story is about the fair and impartial application of the law. It is not difficult for people to see the hypocrisy of this situation. Police officers aggressively enforce DUI laws, except when it applies to them. There is no question, had a regular citizen been stopped under these circumstances, he/she would have been arrested. This is the old "Do as I say, not as I do." It must be comforting for some peace officers to know they will not be subject to the justice they dish out to others.

It is important the characters of our peace officers be beyond reproach. Their first commitment must be to justice. Favoritism has no place in our judicial system. The officers who overlooked Trooper McKaig's transgressions should have been immediately punished. Their actions placed Trooper McKaig as well as the public in danger and damaged the character of their department.

The trial of a West Hollywood man accused of conspiring to murder two family members of a codefendant's ex-girlfriend in Anaheim Hills resulted in a hung jury. The jury deliberated for two days but was unable to reach a unanimous verdict.

The case involves three defendants who allegedly conspired to kill the family members of codefendant Iftekhar Murtaza's ex-girlfriend, Shayna Dhanak. Murtaza was apparently trying to win back Ms. Dhanak.

The victims of the attack, father Jayprakash and sister Karishma Dhanak, were abducted, stabbed to death and then set on fire. Mother Leela Dhanak was found unconscious with her throat cut on a neighbor's lawn.

Defendant Vitaliy Krasnoperov was charged with murder, attempted murder and conspiracy to commit murder, plus a sentence enhancement for murder committed during the course of a burglary. If Krasnoperov had been convicted, he could have been sentenced to life without the possibility of parole. The other defendants have not yet gone to trial.

Evidence at trial showed Krasnoperov was not present when the murders were committed. Rather, his attorney said he was at home recovering from injuries sustained in an accident. According to the prosecution, however, Krasnoperov helped his friend Murtaza plan the crime and there were internet conversations between Murtaza and Krasnoperov in which the murders were discussed. Krasnoperov's attorney argued his client did not conspire or assist Murtaza with the crimes; he only tried to calm his friend down.

A new trial date has been set for June 13, 2011 by Judge Thomas Goethals. The District Attorney has indicated they intend to retry the case.

A man who worked as a manager at an Orange County fireworks company has pled guilty to stealing over $100,000 from his employer.

TNT Fireworks of Fullerton was the victim of the thefts. Nearly 200 fraudulent checks were written by the defendant, allegedly for city permits. The victim discovered the loss in 2008 during a review of the company's finances.

Part of the plea will be a prison sentence of approximately 2 years and restitution of over $100,000. The defendant will plead guilty to 5 felony counts.

The difficulty for a criminal defense attorney in representing an individual charged with this kind of crime is twofold. First, because these incidents occurred over a very long period of time, the amount of the theft is very high and there can be multiple felony counts involved. Second, because these thefts were committed by someone in a position of trust, embezzlement charges are typically involved and such charges can bring a very substantial amount of incarceration time.

Victims in these types of cases are understandably upset. The companies are often small businesses and the loss of $100,000+ can effectively destroy their day-to-day operations. When you couple all of this with the feeling of betrayal caused by what may have been a trusted employee, or even a friend, great care must be taken by the defense attorney.

On Sunday, all of television was abuzz with the news Osama Bin Laden had been "put down" in Pakistan. His crimes against America and the World were beyond description.

It is important for us to get a good look at what pure evil really is. We live in the greatest country on Earth, where the rule of law prevails. This country is the envy of the world. We in America do not have to face, on a daily basis, the type of instability and terror that is the lot of many third world nations.

Because we are shielded from lunatics like Bin Laden, I think we sometimes lose our perspective. As a criminal defense attorney in Orange County, California, I represent people on everything from DUI to domestic violence. When I read the paper or speak to regular citizens, I am surprised by the venom directed against the criminal defendant. It is important to understand the vast majority of people caught up in the criminal justice system, I would say 95%, are average Americans like you and me who have made mistakes. These are not evil people out to destroy our way of life. They are our fathers, mothers, sisters, brothers, sons, daughters and friends.

We should show those citizens caught up in the criminal justice system forgiveness and understanding. It is easy to point fingers at the monsters that make the headlines everyday and say we are engaged in a war on crime. However, it is important to remember the vast majority of our fellow citizens are deserving of our Christian charity. Who among us could not say: There but for the grace of God go I?

A Florida appellate court heard arguments last week regarding forced blood DUIs. California addressed this issue, which is known to have major effects on DUI cases, some time ago.

California has the "implied consent" rule which in effect states, in return for a valid California Driver License, a person implicitly consents to a blood or breath test under certain circumstances. The law allows law enforcement to use force in obtaining a blood test as long as it is not obtained by the use of unreasonable force or for an improper purpose.

Upon an arrest for driving under the influence, a police officer will advise the suspect of the requirement for a chemical test of blood or breath. There is a chemical test admonition form used for this purpose [C.V.C. § 23612]. This form, which allows the peace officer to document the advisement, states:

1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.
2a. Because you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol or drugs, you have the choice of taking a blood, breath or urine test.
c. (when applicable) Since the blood and breath test is unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. (when applicable) Since you need medical treatment, your choice is limited to...
3. If you refuse to submit to, or fail to, complete a test, your driving privilege will be suspended for one year or revoked for 2 or 3 years. A second offense within 10 years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of C.V.C. section 23140, or a separate administrative determination that you were driving with a blood alcohol content of .01 percent or more while under the age of 21, or .04 while operating a commercial vehicle, or a blood alcohol content of .08 percent or more at any age, or refusing a test will result in a 2 year revocation. Three or more offenses within 10 years of any combination of the above violations, convictions or separate administrative determinations will result in a 3 year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and/or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test you will take or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

After this is read, the responses are recorded by the peace officer.

One of the problems with this admonition is not allowing an attorney present. Although this makes sense because time is of the essence, as alcohol is continuously being burned off, people are naturally taken aback when they are told this by a police officer.

The ultimate problem with forced blood is the effect it can have on a California Driver License. If a person refuses a chemical test and an officer does not force blood, an important piece of evidence for the prosecution is missing. However, if a person refuses the test and blood is forced, then he/she is punished for the refusal, by both DMV and the Court, and the chemical test is available to be used against him/her in court.