Court Reverses Conviction For Hells Angels Gang Member

This case marks a very difficult decision for our high Court because it involves attempted murder of a cop.  The accused, a member of the “Filthy Few,” an enforcer contingent of the Hell’s Angels, assaulted a man and left him unconscious. Because the defendant was known to officers in the Sheriff’s Office to be “armed and unpredictable,” a SWAT team was dispatched to the defendant’s home to arrest him. Numerous shots were fired; the officers took cover. After a standoff, defendant surrendered. A jury convicted him of 10 premeditated attempted murder counts on various officers. On appeal he challenged the sufficiency of the evidence.  Interestingly, the District Attorney decided to pursue the charges of attempted murder rather than something less such as criminal assault or reckless discharge of a gun.  This type of overcharging is common in Courts such as Long Beach, particularly where police are the alleged victims.

The California Appeals Court threw out many of the attempted murder convictions.  Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the killing. Guilt of attempted murder must be separately determined as to each victim. Where a bullet is fired at a victim at close range in a manner that could have killed had the bullet been on target, the evidence is sufficient to show attempted murder. It need not be shown the defendant intended to kill a particular person, such as where a bullet is fired into a crowd with the intent to kill one of the group. However, where there are multiple possible victims, intent to kill must be proved for each count charged. Here, three of the counts were based on defendant firing a shot at three officers. Because there was no evidence separate shots were fired at each of the other officers, only one of the three convictions may stand. As for three of the other officers, no evidence showed defendant fired directly upon them.  (Courtesy of CCAP)

Dissuading A Witness Can Be Proved By Asking A Victim “Can We Settle This Case Out Of Court”

Defendant was charged in criminal court of various assault type offenses. The day before his preliminary hearing, he approached witness Kahn after prayer services at Kahn’s mosque, apologized for the incident, and asked whether they could settle the matter out of court “in a more Muslim manner family to family.” Defendant was found guilty of assault with a deadly weapon, vandalism, and misdemeanor attempting to dissuade a witness. He claimed on appeal there was insufficient evidence of dissuading a witness.

The Appeals Court Justices Opined that Penal Code section 136.1, subdivision (a) requires that the attempt to dissuade a witness from testifying be knowing and malicious. Given the facts—that Kahn had never previously seen defendant at his mosque until the day before the preliminary hearing and defendant was asking him not to testify, the “knowing” element was met. As for malice, section 136 defines it to include an intent to “thwart or interfere in any manner with the orderly administration of justice.” This means that section 136.1, subdivision (a)(2) makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and the intent to prevent the testimony. While this may appear to write the word “maliciously” out of the statute, a review of the legislative history of sections 136 and 136.1, reflects the Legislature intended a broad interpretation of “maliciously” which can be proved either in the traditional sense (intent to vex, annoy, harm or injure) or in a manner unique to the statute (to thwart or interfere in any manner with the orderly administration of justice).

Cases such as this in Long Beach generally involve allegations of Gang involvement, the District Attorney takes these kind of crimes very serious and will strive to get a conviction in criminal court. (Resources from CCAP)

Court Rules You Cannot Use Being Drunk As A Defense To Killing Your Wife And Her Suspected Lover

The accused in this criminal case was charged with homicide after he returned home from work in January 1990 to find his wife having a drink with her cousin Hernandez. Rios, who had himself been drinking, suspected his wife was having an affair with Hernandez. After an argument, Rios shot and killed his wife and Hernandez; a stray bullet went through the wall of their trailer home and killed his son. Rios was found guilty of three counts of first degree murder and gun use. On appeal he challenged in part the voluntary intoxication instructions given.

On appeal, the California Appeals Court denied the defendant’s request to be set free.  They found that the  trial court gave the standard well accepted jury instructions which limited the jury’s use of evidence of intoxication to determining whether Rios intended to kill, or premeditated/deliberated the killings. Rios claimed his intoxication was relevant to whether he acted in the heat of passion or held a subjective belief there was imminent danger justifying the use of deadly force. At the time of Rios’ 2011 trial, former Penal Code section 22, subdivision (b), allowed admission of evidence of voluntary intoxication to determine whether the defendant harbored express malice aforethought. “By referring to ‘intent to kill’ rather than express malice or its legal equivalent (‘intent to unlawfully kill’)” the instruction failed to inform the jury it could use evidence of intoxication to determine whether Rios harbored express malice, i.e., the intent to “unlawfully” kill. However, the error was harmless because the jury found premeditation and deliberation, which means it rejected a heat of passion defense.  Although this case was not heard in Long Beach, it is generally understood that these types of defenses are hit and miss when it comes to a jury and its willingness to acquit a suspected murderer.

What Are The Consequences For Drunk In Public?

The crime of drunk in public is codified in Penal Code section 647f. The maximum penalty if convicted is a fine of $1000 and 90 days in jail. The law allows for probation in order to avoid jail in most cases. With that in mind, most people facing the charges choose to simply plead guilty or no contest, but is that a good thing to do?

The answer depends on what you think about having the conviction on your permanent criminal record. If you are not planning on applying for jobs in the near future then it may be an OK choice. But, if you are worried about the effects a drunk in public will have on your record you may want to consider hiring an attorney to fight the charges. A public intoxication allegation in Long Beach can be won if the circumstances warrant it. For example, in many cases the police may not fully document the case by acquiring evidence of intoxication such as a breath or blood test. If the prosecution cannot prove the case beyond a reasonable doubt the case should be dismissed.