March 31, 2010

Calabasas Nursing Home Employee Stands Trial for Elder Abuse and Torture

Cesar Ulloa, a former employee at the upscale Calabasas Silverado Senior Living Center, is in trial this week. The Los Angeles District Attorney’s office charged Ulloa with seven counts of elder abuse and one count of torture for abusing and mistreating the center’s elderly patients.

Elder abuse is a “wobbler” which means that the prosecutor has the discretion to charge the offense as a misdemeanor or a felony. However, Penal Code 206 PC, California’s torture law is a violent felony that subjects Ulloa to a life sentence if convicted.

Witnesses testified that Ulloa engaged in “wrestling” type-moves with the patients, many of whom lacked the mental and/or physical capacity to report the abuse. Some of the reports include accounts that Ulloa jumped off a dresser and landed knees first onto a patient’s stomach, that he body-slammed a female patient, that he severely beat a mute patient, and that he used one patient’s arm to hit another patient to encourage a fight.

If confirmed, the elder abuse charges are a given. It is the California Penal Code 206 PC “torture” charge that will be more difficult to prove. In order to convict Ulloa of torture, the D.A. must prove that Ulloa intended to cause “cruel or extreme pain and suffering” for personal satisfaction.

Ulloa’s criminal defense attorney is arguing that the charges are based on false allegations from co-workers who were jealous of Ulloa’s quick success within the facility.

March 26, 2010

California Woman Who Set Fire to Stripper Convicted of Aggravated Mayhem

Earlier this month, a California woman was convicted of aggravated mayhem and torture for throwing a gasoline-filled beer can at a stripper and then setting the woman on fire. She was sentenced to life in prison. The incident took place last year outside of a San Fernando Valley strip club.

Penal Code 205 PC, California’s aggravated mayhem law punishes disfiguring or disabling another person while exhibiting extreme or reckless disregard for that individual’s physical or psychological well-being.

It is the “extreme or reckless disregard for the victim” that distinguishes aggravated mayhem under Penal Code 205 PC from Penal Code 203 PC, California’s “traditional” mayhem law. That same mental state is why aggravated mayhem’s penalty is so much more severe. The penalty for aggravated mayhem is a life sentence. In contrast, “traditional” mayhem is punishable by two, four, or eight years in prison.

Although the defense attorney tried to mitigate her client’s culpability by arguing that she has “a history of emotional problems and a short temper”, the jury didn’t believe that history was enough to overcome the “extreme disregard” for the victim’s well-being.

March 24, 2010

California's No Drop Policy

Contrary to popular belief, it is the prosecutor, not the victim who determines whether to file or drop California domestic violence charges. Many California prosecuting agencies go so far as to subscribe to a “no drop” policy. This means that even if the victim doesn’t want to “press charges”, the prosecutor will not “drop” the case.

There are two main reasons why prosecutors follow this protocol. The first is purely political. Due in large part to the O.J. Simpson murders trial, this state has vowed to take an aggressive stance on domestic violence charges.

The second has to do with a common phenomenon known as the recanting victim. “Recanting victims” are alleged victims of domestic abuse who change their stories once charges are officially filed.

The fact is that many victims initiate false spousal abuse charges and then decide they want to come clean. Unfortunately, by then it’s too late. Prosecutors and the “no drop” policy oftentimes proceed on the incorrect assumption that the original report is true and that the victim is only changing her mind because (1) she is scared of the abuse she will face after testifying, and/or (2) she doesn’t want to lose her financial support.

Because of this policy, it is a good idea for all parties involved in a domestic abuse case to consult with a skilled California domestic violence lawyer who knows the most effective ways to reconcile spousal battery cases before they get out of hand.

March 19, 2010

Not All Negligent Acts are Treated the Same

In fact, under California law, they are treated quite differently. Civil negligence (sometimes referred to as “ordinary” negligence) involves simple carelessness. California criminal negligence, on the other hand, involves extreme recklessness.

If you are guilty of ordinary negligence, it means that you didn’t act in the same manner as a theoretical “reasonable” person in your same shoes. Let’s say that you’re involved in an accident on one of our many overcrowded Los Angeles freeways. While you are applying your eye-makeup, you don’t realize that traffic is stopped and, as a result, you rear-end the car in front of you. This is an example of civil negligence.

Now let’s change the facts. You’re on that same crowded freeway but this time acknowledge that traffic is at a stand-still. You’re late for work, so you decide to drive 90mph on the shoulder. As you’re applying that last bit of makeup, you fail to see the stalled car up ahead, rear-end that car, and seriously injure the driver.

This is an example of criminal or “gross” negligence. Not only are you driving on the shoulder, but you’re driving at excessive speeds and simultaneously applying makeup. This is a gross departure from how that same fictitious “reasonable” person would act under the same circumstances.

Unlike civil negligence (which is more or less synonymous with carelessness), California criminal negligence necessarily involves an “I don’t care what happens” reckless attitude towards human life. Consequently, acts involving criminal negligence can result in substantial jail or prison sentences, whereas civil negligence typically (though not always) won’t subject you to criminal sanctions at all.

March 18, 2010

Brandon Hein - Life in Prison under California's Felony-Murder Rule

Perhaps the most relatively recent controversial product of the often criticized California felony-murder rule is Brandon Hein. Brandon Hein, then 17, was sentenced to life in prison for his involvement in the 1995 stabbing of another teenager. The case received much publicity based on the application of the felony-murder rule.

California’s felony-murder rule holds a defendant liable for murder if he or an accomplice kills another person during the commission of (1) specifically listed felonies, or (2) “inherently dangerous” felonies. Hein’s case involved an alleged robbery, which is one of the specifically listed felonies that triggers this rule.

Hein and the other teens charged in connection with the murder claimed that they went to a house to buy marijuana when a fist fight erupted. The fight ended when the victim (the 15-year old son of a Los Angeles Police Department veteran) was stabbed in the chest by one of the teens.

Prosecutors painted a different picture, saying that the boys went to the house to steal the marijuana. Because of California’s felony-murder rule, all of the teens involved in the fight were convicted as if each of them personally stabbed the victim. This was despite the fact that all of them denied even knowing that the individual who stabbed the victim did so…or, for that matter, that he even had a weapon.

March 12, 2010

California's New Non-revocable Parole Program

In an effort to

  • improve parole supervision,

  • relieve California’s over-crowded prisons, and

  • reduce recidivism (that is, the number of people who are released from prison and go on to commit new crimes),

the California Department of Corrections recently launched a new program…non-revocable parole.

When a parolee allegedly violates his/her parole conditions, he/she is entitled to a California parole revocation hearing. At that hearing, the hearing commissioner determines whether there is enough evidence to revoke the parolee’s status and return him/her to the California state prison.

However, under the non-revocable parole program, certain parolees will not attend California parole revocation hearings. Individuals who are placed on non-revocable parole will only be returned to prison if they are arrested for a new offense…and only if they are convicted of that offense in the same manner as any other criminal defendant.

In addition, parolees on the non-revocable parole program don’t report to a parole officer. They do, however, remain subject to warrantless searches by the police.

March 12, 2010

California's So-Called "Mandatory" Parole Law

California essentially subscribes to a mandatory parole program. In theory, this means that all eligible inmates who come up for parole will be granted parole. In reality, this means something completely different.

You see, before a “lifer” is placed on parole, he/she must appear before the parole board for a California Board of Parole “Lifer” Hearing. During one of these parole suitability or “lifer” hearings, the California parole board evaluates whether or not it believes that an inmate is “ready to be returned to society”.

Eligible parolees are supposed to be paroled unless they present an overriding public safety risk. What constitutes an “overriding public safety risk” is very discretionary and, as I’m sure you can imagine, very open to interpretation.

Although parole rates in the last few years have grown…due in large part to overcrowded California state prisons and the state’s budget crisis…certain classes of felons are surely more subject to scrutiny than others. It is these inmates who attend more than their share of hearings before being released on parole.

This is just one reason why it is so important to consult with a California criminal defense attorney who understands the most effective ways to convince the Board of Parole Hearings that you have been rehabilitated and are therefore ready and eager to become a “productive member of society”.

March 11, 2010

Understanding the Difference Between California Probation and Parole

Even though the terms probation and parole are frequently used interchangeably, they are actually quite different. Take, for example, yesterday’s reports about rapper DMX. About half of the media websites reported that the rapper violated his probation, while the other half reported that he violated his parole. DMX actually violated his probation.

The main difference between probation and parole is that California parole laws apply exclusively to convicted felons and only go into effect once the inmate is released from the California state prison. As a “parolee”, the individual agrees to abide by certain terms and conditions, which are monitored by a parole agent.

Probation is also a supervised program, but (1) it applies to both misdemeanors and felonies, and (2) is imposed as a condition of sentencing. If the judge places you on probation, it means that you also agree to abide by certain terms and conditions, but you do so in exchange for either a lesser jail sentence or for no jail time at all. Probation can be formal or informal, depending on whether you were convicted of a misdemeanor or a felony.

If placed on formal probation, you report to a probation officer. If placed on informal or “summary” probation, you simply check in with the court for periodic progress reports.
Violating any of the terms of your probation or parole subjects you to further incarceration under California’s parole laws or California’s probation laws.

March 9, 2010

Former R&B Artist D'Angelo Arrested for Soliciting a Cop

R&B singer D’Angelo, whose real name is Michael Archer, was arrested in Manhattan over the weekend for allegedly offering an undercover cop posing as a prostitute $40 for oral sex. D’Angelo is maintaining his innocence and has plead not guilty to the charge.

So, the big question is, will D’Angelo argue that he was entrapped? The legal defense of entrapment is raised almost every time an undercover cop is involved in a case alleging solicitation of a prostitute.

In California, for example, the Los Angeles Police Department is notorious for sending out “decoy” officers to pose as prostitutes. These undercover cops look for “johns” to engage in conversation and to ultimately arrest for soliciting illegal sex.

Under California law, entrapment only refers to situations where a law-abiding person is coerced into committing a crime that he/she otherwise would not have. If the officer simply offered D’Angelo sex in exchange for money, her conduct wouldn’t rise to the level of entrapment. If, however, she appealed to his ego and used flattery to get him to put up the cash, he could absolutely claim that he was entrapped.

Whether the conversation was recorded, whether there were any other witnesses to the alleged conversation, and the specifics of the conversation will all be critical issues in D’Angelo’s defense.