Monder Law Group - News

Juvenile Justice-Reform Bills Passed by CA Legislature

On September 15, 2017, the California legislature adopted two bills jointly authored by State Sens. Ricardo Lara and Senator Holly J. Mitchell, by which major legislative changes have been introduced to the juvenile justice system. The newly approved Senate Bills 394 and 395 are the last two bills to be approved as part of the #EquityAndJustice package aimed at justice reforms for both juveniles and adults. The bills are now awaiting action by Gov. Brown.

SB 394 – Juveniles Life Without the Possibility of Parole – is a measure that would put an end to sentencing juveniles to life without parole. Additionally, SB 395 – Miranda Rights for Youth – is a measure that would make it impossible for those under 18 to waive their Miranda rights during the interrogations before receiving legal counsel.

Reputable San Diego criminal lawyers have already welcomed the reforms as a much-needed step towards greater equality and transparency within the juvenile justice system.

Mitchell and Lara started advocating for the #EquityAndJustice bills in January 2017, putting much emphasis on the bills concerning the juvenile justice system. Cases of youths who confessed to offences they didn’t commit were presented to support the proposed legislation. Research finding were also presented indicating that young people don’t understand their constitutional rights as well as adults, and are more likely to waive their Miranda rights in a police investigation.

Before SB 394 and 395, the California legislature had already passed SB 190 on September 5, another bill directly concerned with the juvenile justice system reforms. Namely, SB 190 – Ending Juvenile Fees, aims to put an end to the debt accumulated by families of incarcerated youths. More specifically, innocent defendants would no longer be required to pay fees for appointed legal counsel unless they are ultimately convicted. The measure aims to put an end to debt accumulation by the families with youth in the juvenile justice system.

The recent legislative changes are seen by many as a natural response to the overall shift in approach to treating juvenile offenders in the past decade, followed by an unprecedented decline in juvenile crime rate. Lawmakers reevaluated the harsh measures introduced in the late 90s and early 2000s, such as lowering the age for children to be tried as adults, through a developmental lens. Research conducted by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice and published in 2003 offered insight into how the adolescent brain differs from that of adults. The findings greatly influenced the way states and courts started perceiving children’s and adolescents’ competence to stand trial.

Also, in 1999, San Diego County predicted that the East Mesa Juvenile Detention Facility would require 1,284 beds to house all its juvenile offenders by 2015. However, the average number of juvenile delinquents in 2015 was nowhere near the predicted figure – the average daily population of delinquent youths was 445. With such a conspicuous discrepancy, it became apparent that an in-depth research into juvenile justice system was necessary, followed by appropriate legislative changes.

The San Diego Association of Governments collected and published statistical data that clearly showed the decline in youth crime:

• The period between 2012 and 2016 saw a 39.5% decline in the number of young people under supervision of the SD Probation Department.
• Juvenile arrest rate went down 53% between 2011 and 2015.
• The juvenile hall population in San Diego has gone down by 48% since 2012.

Moreover, other counties have witnessed the decline over the same period, most notably Los Angeles (58%), Orange (55%), and Riverside (54%).

Ultimately, proponents of the juvenile crime system reforms have made use of research findings and statistical data to make a correlation between more lenient measures and the decline in juvenile crime rate. Moreover, they have consistently advocated prevention, evidence-based risk assessment, rehabilitation and family cohesion instead of locking youths up for minor offences. With the three Senate Bills 190, 394 and 395, many believe the juvenile justice system is sure to see changes and a shift towards greater justice and equality.

The recent changes also call for the further education of San Diego criminal lawyers in how to interview and counsel a juvenile client. For example, the National Association of Criminal Defense Lawyers (NACDL) hosted a number of seminars on communicating with a juvenile client, incorporating adolescent brain and behavioral development science into the criminal proceeding, and other, many of which available online. San Diego criminal defense lawyers should get thoroughly informed of the recent legislative changes and best practices so they can provide the best representation possible.

Monder Law Group - News

Case Dismissed Against Doctor Being Falsely Accused of Assault and Battery

Last month San Diego criminal defense lawyer Vik Monder had the privilege of representing a doctor in the community who was being accused of assault and battery against a disgruntled handyman. The case was being prosecuted in the Vista Courthouse. After months of negotiations with the prosecutions office, the parties could not come to an agreement for a plea deal. The prosecution wanted attorney Vik Monder’s client to take a plea deal where he would admit to the assault but in exchange he would do no jail time. Attorney Vik Monder knew this was a bad offer from the beginning since there were no medical records and no pictures indicating any injuries. This was a clear he said she said case with absolutely no witnesses besides the complaining victim. It was surprising to criminal defense attorney Vik Monder that the prosecution’s office even chose to file such a case. However, the parties were respectful with one another and attorney Vik Monder sent numerous documents for mitigation in efforts to have the district attorney to dismiss the case. Nevertheless, the alleged victim wanted his day in court and did not authorize the district attorney to dismiss. Often times the district attorney will consider a dismissal if all parties are agreeable. In this case, the district attorney was representing the interests of the complaining witness while Attorney Vik Monder was representing the interests of the defendant.

After about a dozen separate court hearings the case was eventually set for trial. Criminal attorney Vik Monder would never sell his client short of what he deserves. In this case, the client was deserving of a dismissal. The client had much to loose if convicted of a crime of violence. His entire medical career depended on Attorney Vik Monder getting the charges dismissed. There was no option but to go to trial. Trials are costly and anything is possible. However, Attorney Vik Monder believed in his client’s innocence and was ready to go to trial in order for the truth to prevail.

On the day of trial attorney Vik Monder answered ready for trial in anticipation that the complaining witness would get cold feet and not appear after the jury selection process. As he was ready to cross-examine this witness on all of his lies and biases and hopefully the jury would see this witness for who he truly was. Attorney Vik Monder is one of the most passionate criminal defense lawyers in San Diego. He fights the fight that nobody else will and puts in the time and effort in proving the innocence of his clients.

If you have questions about the criminal process in San Diego, feel free to contact San Diego criminal defense lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Attorney

Monder Law Group - News

Case Dismissed Against Young Military Member in San Diego Claiming his Innocence From the Very Beginning

This month Attorney Vik Monder has the privilege of representing an innocent man that proclaimed his innocence from the beginning even when the judge raised the bail over $100,000 and his life would have taken a very dark path if handled differently.  This young San Diego Marine has had no prior criminal record. The case was filed in the El Cajon Courthouse. This case was a matter of being in a toxic relationship with someone that caused him much grief over the years. After serving his country, now this individual faces serious prison for the crimes he was being accused of here in San Diego. There were two separate victims saying the same thing that Vik Monder’s client assaulted them and caused injuries to their person. There was physical evidence of injuries that existed and statements from these witnesses that pointed to the young military member as the attacker.

This young military member proclaimed his innocence from the very beginning and needed an aggressive San Diego Criminal Lawyer to defend the charges against him, which were both felony domestic violence and elder abuse charges. The evidence was strong and the prosecution had a good case to proceed with the case. However, attorney Vik Monder did his own thorough investigation based on the information provided to him by his client. Attorney Vik Monder spent countless hours setting meetings with other law enforcement agencies that have dealt with the false reports by the victims in the past. After gathering all the information from local San Diego law enforcement, attorney Vik Monder set up a meeting with the chief district attorney and began the negotiation process. After several months of hard work the case was finally dismissed.

Often times there is additional information that needs to be investigated to shed light on the true facts of the case. There are always two sides to a story and then the truth lies somewhere in the middle.

If you have questions about the criminal process in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Lawyer      

Monder Law Group - News

$1 Million Dollar Bail Set For Carmel Mountain Shooting in San Diego

Julio Riel Narvaez faces charges for a felony count of attempted murder and another felony count of assault with a firearm. Mr. Narvaez has plead not guilty. Mr. Narvaez allegedly shot a fellow employee in the head, with a .22 caliber hand gun, at his workplace in Carmel Mountain Ranch pleaded not guilty Monday. The victim was seriously injured by the gunshot wound to the head, but the shot did not kill them. Mr. Narvaez faces 25 years to life with parole for the attempted murder charge, along with additional years for the assault with a firearm charge. The shooting took place in middle of June in Carmel Mountain Ranch.

Mr. Narvaez bail has been set at an astonishing $1 million dollars. We will look at what exactly is bail? What determines the bail amount? What is a bail hearing, and what all goes into it?

The first question is what exactly is bail? Bail is an amount of money one pays to the court in order to assure that they will return for their hearings. One can do this by giving the court the amount that they request or by going to a private agent. This is what is known as a bail bondsmen. They usually will cover your bond for a 10% fee. Here, because Mr. Narvaez bail is set a one million dollars he can post the amount in full or have the bail bondsmen post it. Usually a person will put up an assist for the bail amount, such as a home. In addition, the bondsmen will keep their fee, which will 10% of one million, so $100,000 to post bail. Sometimes, if one hires an expert legal counsel right s charges stem they may be able to lower the fee or be able to avoid private bail all together and save a client money. Therefore, that is the essential of what bail is.

The next question we will address is how much is bail? Bail differs on multiple factors. The main factors being what crime is one being charged with, in what county is one being charged in. For example, gross vehicle manslaughter in San Diego County has a bail of $100,000. Where Los Angeles County may be $125,000. In this case, Mr. Narvaez faces charges for a felony count of attempted murder and another felony count of assault with a firearm. The judge applied a $1 million dollar bail amount for these separate crimes. It is a loose guide that the more serious the offense the more expensive the bail, the less serious of the offense the less expensive the bail. In some case a very serious crime has no bail. This is the case for crimes like murder and treason. Therefore, the amount one must front for bail is hard to guess because there are multiple variables that will most definitely come into play when determining the overall amount.

The last part of the bail process discussed is the bail hearing. The bail hearing is where you and your criminal defense attorney can go before the Judge and inquire about your bail. A California bail hearing essentially presents you with an opportunity to ask the court to either reduce your bail, or eliminate bail altogether by releasing you own recognizance. This can happen after an arraignment if one wishes to pursue the bail hearing. Here, Mr. Narvaez was handed his $1 million dollar bail amount at a bail hearing. Thus, a California bail hearing allows one to try to reduce their bail or have the court impose where they do not have to pay anything to get out on bail.

The next part of the bail hearing that should be analyzed is whether it is possible for one to have their bail reduced? The answer to this is yes. California bail hearing laws state that the defendant, either personally or through his or her attorney, friend, or family member, also may make application to the magistrate for release on bail lower than that provided in the schedule of bail that is, a California bail hearing or on his or her own recognizance. The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to assure the defendant’s appearance or to assure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance. California Penal Code 1269c. When deciding whether to modify your bail, the Judge will consider the seriousness of the alleged crime, looking at any injuries to an alleged victim, any threats that were made to an alleged victim, if there were any weapons allegedly used, and whether any drugs were allegedly involved,

They will also look at one’s prior criminal history, their probability of appearing for future court appearances, and, most importantly, public safety.

Here, with regard to Mr. Narvaez alleged acts it will look as if the Judge in the bail hearing more than likely made the right call by not lowering his overall bail amount. The alleged offense is attempted murder. The only possible way it could be more serious of an offense is if it was murdered. Because the alleged offense is attempted murder the overall seriousness is extremely high. In addition, the bail hearing Judge will look at the injures the alleged victim has suffered based off of Mr. Narvaez actions. Because the alleged victim was shot in the face and was in critical condition at the hospital this too is also very serious. Moreover, the Judge will look to see if there was a threat that was present. The wording is not specifically clear but based off of Mr. Narvaez’s actions there is possibly a threat on another’s life. Also, Mr. Narvaez did use a weapon. Mr. Narvaez used the .22 caliber handgun that he had at his work station on the alleged victim. However, there is no report of drugs being present, involved or used during this incident which the bail hearing Judge would also look into.  This will all go against lowering the bail for Mr. Narvaez, and because these factors are so heavily against him the bail would most likely be pretty costly.

The next thing the bail hearing Judge will look at is Mr. Narvaez past criminal record. The report has aid the Mr. Narvaez has no previous criminal record. This will fall in favor of Mr. Narvaez because it shows that he does not have a habit of breaking the laws and not abiding by them. In addition, because Mr. Narvaez has a lack of criminal record there would be no negative showing of him skipping on bail or not showing up on court dates as he is supposed to. Thus, this part of the bail hearing consideration should fall in favor of Mr. Narvaez.

The last and said to be the most important is the public safety factor. Mr. Narvaez allegedly tried to kill someone by shooting them in the head, this will not be a good factor for him. Because of the public safety concern Mr. Narvaez bail will probably not be lowered.

Thus, doing the reasonable thing and taking in all of the facts and circumstances it is very unlikely that Mr. Narvaez bail would be lowered based off of the alleged actions.

However, the judge also does have the discreation to raise ones bail. If one is seeking a bail reduction, the prosecutor may highlight information about which the court was otherwise unaware such as a probation violation or parole violation.

There is also releasing on own recognizance In lieu of posting bail, you may ask the judge to release you on your own recognizance more commonly referred to as an O.R. release. As long as you are not charged with a California criminal offense that is punishable by death, you are entitled to an O.R. release unless such a release will compromise public safety, or will not reasonably ensure your appearance for future court proceedings. California Penal Code 1270. As discussed above that is extremely unlikely to happen in this specific situation.

In conclusion, bail and bail hearings are pretty complex, there are multiple factors and a fair amount of judicial discretion that can be present.

If you have questions about the criminal process in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney

Monder Law Group - News

Local San Diego Gang Members Indicted on Money Laundering Charges

Federal officers on June 25^th announced a year long investigation involving the Grape Street Crips leading to the indictments of 22 people. The majority of the people indicted were in custody on Wednesday with arrests made in the Mid-South and California. The members are allegedly tied to the California based Grape Street Crips gang supplied heroin, marijuana, methamphetamine, cocaine and other drugs to the Tennessee based Memphis Peda Roll Mafia. In addition, the indictments allege that seventeen of the defendants are members of, or associated with, the Memphis Peda Roll Mafia, a local street gang that distributes multiple types of illegal drugs in and around the Memphis area. Five people named in the indictments reside in California and are members or associates of the Grape Street Crips and Peda Role Mafia. During the investigation, law enforcement officials determined that members of the Peda Roll Mafia established a pipeline of illegal drugs throughout the Mid-South area. As members of the Grape Street Crips, they supplied heroin, marijuana, methamphetamine, cocaine and various other pharmaceutical drugs to the Peda Roll Mafia gang who then distributed the drugs throughout the Western District of Tennessee and the Mid-South area.

The alleged gang members obviously facing multiple drug charges. However, the federal indictment also alleges money laundering charges. We also here about money laundering on the news but what does money laundering really mean? We will look at money laundering in depth and see what it really means.

The relevant statute for money laundering is California Penal Code §186, which became effective more recently in October of 2011. It is longer more comprehensive statute that states,

Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars ($5,000), or a total value exceeding twenty-five thousand dollars ($25,000) within a 30-day period, through one or more financial institutions (1) with the specific intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, or (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity, is guilty of the crime of money laundering. The aggregation periods do not create an obligation for financial institutions to record, report, create, or implement tracking systems or otherwise monitor transactions involving monetary instruments in any time period.

Cal. Penal Code. § 186.10. The elements that are required to prove money laundering are as follows, (1) Conducting, or attempting to conduct a transaction through a financial institution. (2) The amount must be five thousand dollars or more in a seven-day span or twenty-five thousand in a thirty-day span. And (3) The defendant intended to promote criminal activity with the financial transaction, or knew the funds involved in the transaction came from criminal activity. The gang members stemming from California will be facing money laundering charges stemming from their alleged actions of drug trafficking. Thus, money laundering has three elements, which must be proved beyond a reasonable doubt.

The first applicable element is, conducting, or attempting to conduct a transaction through a financial institution. A financial institution essentially means a bank. Transaction entails, making a deposit, withdrawing money, initiating an electronic or wire transfer, exchanging money into foreign currency, or writing a check. Cal. Penal Code. § 186.10. Here, there are very limited facts because the indictment and arrest all occurred a couple of days ago. But, this element is not a very demanding one. It only requires a bank transaction. I f one of the alleged members put money in the bank to use it later on a debit card this would fully fulfill this first element. The people that are being prosecuted could possibly have a defense. If the defendants only dealt in cash and never used a bank or other financial institution this element would not be meant. Therefore, the people charged in this crime must have conducted or attempted to conduct a transaction through a financial institution in order to complete the first element of money laundering.

The second element amount must be five-thousand dollars or more in a seven-day span or twenty-five thousand in a thirty-day span. This applies to the certain minimum amount of money; the amount must be equal to, or greater than the requirement, also, it can be multiple transactions, it does not have to be one lump sum. Cal. Penal Code. § 186.10. Here, once again we are dealing with limited facts. However, the amount of funds to complete the second element of money laundering is not that high, just at five thousand dollars a week, or a total of twenty-five thousand dollars in a month span. If the activity that the Federal Investigators claim is true this requirement should easily be meant. In addition to look at this from a logical standpoint the government would not invest time and money to this extent if the amount of funds were fairly low, therefore the amount should probably meet this threshold. Thus, the second element of money laundering states that the amount in question must be five-thousand dollars or more in a seven-day span or twenty-five thousand in a thirty-day span.

The last element the prosecution would have to prove is that the defendants intended to promote criminal activity with the financial transaction, or knew the funds involved in the transaction came from criminal activity. The legal definition of money laundering has specific intent or knowledge as one of its key elements. This means that you are not guilty of money laundering if you unknowingly initiated a banking transaction that turned out to be connected with a crime. Cal. Penal Code. § 186.10. Here, if the alleged gang members complete the other two then this element will most likely be meant. The first option if this element would be to promote criminal activity. This could be buying supplies to make drugs or weapons to use as protection, and possibly even cars in which one would use to transport the product. The second option of the third element for money laundering is knowing that the funds stem from criminal activity. Once again, if these people are alleged gang members this is not a very difficult element to prove because they would be involved in criminal activity. Therefore, the third and final element of money laundering is that the defendants intended to promote criminal activity with the financial transaction, or knew the funds involved in the transaction came from criminal activity.

The penalty one faces for money laundering is more diverse sentence than most crimes, because it is what known as a “wobbler.” This means that the crime can be considered a misdemeanor or felony. If money laundering is charged as a misdemeanor, the potential penalties include; up to one year in county jail; and/or a fine of up to one thousand dollars. However, a felony sentence can result of four years in state prison, and a $250,000 fine or twice the money laundered but not exceeding $500,000. Cal. Penal Code. § 186.10. (c). In this case, it would most certainty be a felony charge of money laundering. This is because the article and indictment allege that there was a drug trade all over the south that would then be exported further to California. This seems as if it is a good size operation that these people were allegedly involved in, which lean toward the favor of a felony charge.

In conclusion, the three elements to California money laundering are, (1) Conducting, or attempting to conduct a transaction through a financial institution. (2) The amount must be five thousand dollars or more in a seven-day span or twenty-five thousand in a thirty-day span. And (3) The defendant intended to promote criminal activity with the financial transaction, or knew the funds involved in the transaction came from criminal activity. There are limited facts so it is hard to say if there is a good case against these people for money laundering charge, however, the elements are not too difficult to prove if one is involved in crime. 

If you have any questions about the criminal process in San Diego feel free to contact San Diego Criminal Defense Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Lawyer

Monder Law Group - News

Understanding the Manson Follower Parole Hearing

Patricia Krenwinkel is a former Charles Manson follower back in the 1960’s. Ms. Krenwinkel is looking to be paroled this week. Her hearing has been set and will be underway. This will be the 13^th time Ms. Krenwinkel has faced the parole board and it has not been granted any of the times. On Aug. 9, 1969, Ms. Krenwinkel joined the band of Manson acolytes who stormed the Benedict Canyon home shared by pregnant actress Sharon Tate, 26, and her movie director husband, Roman Polanski. Tate and four others were stabbed and shot. Ms. Krenwinkel testified to chasing the coffee heiress, Abigail Folger, with a knife and stabbing her 28 times. The next night, Krenwinkel and others killed Leno LaBianca and his wife, Rosemary, at their Los Feliz home. Krenwinkel and fellow family member Leslie Van Houten held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca. After the murder, Ms. Krenwinkle wrote “Death to Pigs” on the walls of the house using blood. The next night, Krenwinkel and others killed Leno LaBianca and his wife, Rosemary, at their Los Feliz home. Krenwinkel and fellow family member Leslie Van Houten held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca.

Ms. Krenwinkel was sent to death row in 1971 after a Los Angeles jury convicted her of killing Tate and six others in the two-day rampage. After the state’s highest court in 1972 ruled the death penalty unconstitutional, Ms. Krenwinkel’s sentence, along with those of other Manson family members was sentenced to life in prison with the possibility of parole. Ms. Krenwinkel has sought parole more than a dozen times. At a 2011 hearing, the panel recognized Ms. Krenwinkel’s efforts, commending her for a clean disciplinary record, having earned a bachelor’s degree, and her work training service dogs and counseling fellow inmates. But Commissioner Susan Melanson said the barbarity of the crimes coupled with Ms. Krenwinkel’s failure to fully grasp the global effects of the Manson killings warranted more time in prison.

A possible decision by the parole panel to release Krenwinkel could be blocked by Gov. Jerry Brown. State law could favor Krenwinkel, the longest serving female inmate in California. It creates a greater presumption that she could be freed because she is considered legally elderly now and was legally youthful and thus less culpable at the time of the slayings, when she was 21.

We will look at what is associated with a parole hearing. First off to define parole it is when, it is the period immediately following one’s release from the state prison. When an inmate is released on parole, they agree to abide by certain parole terms and conditions. For example no drinking or doing drugs. Or they have to find a job. Things in that nature are typical parole terms.

When is one able to receive parole? This depends greatly in their original sentence.  If the person has determinate sentence they can usually be paroled at the end of the sentence. There are some variations on this a big factor would be if the person completed any work time credit or good time credit. It is the intent of the Legislature that persons convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Secretary of the Department of Corrections and Rehabilitation pursuant to this section and Section 2933.05. (b) For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration. Credit should be awarded pursuant to regulations adopted by the secretary. Prisoners who are denied the opportunity to earn credits towards their California parole pursuant to subdivision (a) of Section 2932 shall be awarded no credit reduction pursuant to this section. Under no circumstances shall any prisoner receive more than six months’ credit reduction for any six-month period under this section. California Penal Code 2933. For all the extra credit one receives their sentence can be reduced up to 50%. This is not applicable to murders or second time felons though.

Then there are indeterminate sentences. This is like when one has a “15 years to life” or “25 years to life” sentence. When inmates are sentenced to indeterminate sentences, they are eligible for parole once they serve the determinate part of the sentence. This is the first time one can possibly be released on parole.

Sometimes a Judge will sentence a defendant to “life with the possibility of parole”.  This is what Ms. Krenwinkel was sentenced. Which is really an older method of sentencing, and Ms. Krenwinkel was sentenced in 1971 so it makes sense. But, there is no determinate part of the sentence.  Under these circumstances, the minimum eligible parole date is typically seven years into the sentence. Ms. Krenwinkel has gone way longer than that as we know.

The next part is the California Parole Board Suitability Hearing. This is when an inmate comes up for parole, they attend a California Board of Parole Hearing.  These “lifer” hearings are automatically set one year prior to an inmate’s minimum eligible parole date. It bears repeating that an inmate’s “minimum eligible parole date” depends on the different sentencing factors outlined above and there is not exact answer when anything will actually take place. This board is filled with people selected by the Governor of the State, Jerry Brown. There are 17 members on this board. As alluded to above the Governor, Jerry Brown, can override the Parole Board’s decision.

The next step is the actual hearing. One can have an attorney present and sometimes, the district attorney will be there to give their thoughts on whether or not they should be granted parole. The main concern at the hearing public safety. And whether paroling this individual would be a threat to the public safety. In Ms. Krenwinkel case, because she killed six people it may be a public concern. But on the other end she is now in her 70’s, they will ask how much of a risk she is if she is free on the streets. It is important to note that they look at prison behavior so two people could commit the same crime and not get the same grant on parole because of different behavior while in prison.

Next thing we will look at us the suitability factors. The Board’s regulations set forth nine factors tending to show suitability for release on parole which will be evaluated during a California parole “lifer” hearing: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time; (5) battered woman syndrome; (6) a lack of a history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and reasonable plans for the future; and (9) responsible institutional behavior factors that are all taken into consideration during a California parole suitability hearing. The panel will weigh all of these factors before they make their decision on whether or not to parole the individual in the hearing. It is important that the individual was proactive during their prison sentence. This could be by taking extra work opportunities, or any extra volunteer activities. In addition, to this, continuing education like Ms. Krenwinkel did. All of these things add up and show that one is ready and suitable to be a part of society.

Just like there are suitability factors there are also dome factors that show that one is not suitable for parole. These are According to the applicable regulation, circumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously have sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. In re Rosenkrantz (2002) 29 Cal.4th 616, 658.  These would be in disfavor of parole, though we do not know much about Ms. Krenwinkel, we do there has been talks that she might be mentally unstable. But this is all the things the parole board will look at. In addition, it will be difficult to make a decision on social behavior.

If you have questions about the criminal process here in San Diego, feel free to contact San Diego Criminal Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Attorney

Monder Law Group - News

Miles Teller Arrested in San Diego For Public Intoxication

Miles Teller, an actor who has starred in War Dogs, Footloose, and The Divergent Series, was arrested in San Diego the other day for public intoxication. Mr. Teller was down in San Diego to visit friends and send off one who would be deployed soon. Officers approached Teller Sunday after finding that he allegedly appeared intoxicated and had trouble keeping his balance, a San Diego police officer reported. Officers approached Mr. Teller while out walking on the street. Officers gave him the option of sleeping it off at one of the city’s detox centers, but the 30-year-old Mr. Teller allegedly did not cooperate. Because Mr. Teller did not cooperate the officers then took him down to the jail and proceeded to book him. In San Diego, the police allow intoxicated people to check into detox centers run by volunteers instead of being arrested and taken to jail. After Mr. Teller allegedly rejected the treatment, and did not want to go to the detox center he was arrested on a charge of public intoxication and taken to jail. Mr. Teller was later released. After all this occurred Mr. Teller responded to the accusations on Twitter, he said, “Went down to San Diego to see my buddy before he deployed,” he tweeted. “I wasn’t arrested I was detained, because there was no evidence to charge me with a crime.” A few minutes later, he continued, “Do not believe everything you read, especially from a third party entertainment news source trying to get clicks. Appreciate the concern.” Mr. Teller then said, “I blame Shore Club.” Insinuating that the bartender at the establishment he was at had over served him and that is why he was

The questions we will look at is what exactly is public intoxication? In addition, will this be on his record regardless of whether he is prosecuted or not? Lastly, how to possibly get this off of his record?

What exactly is public intoxication? In California, it is called Drunk in Public, the rule states that, “Offense of public intoxication is complete if arrestee is intoxicated in public place, and either is unable to exercise care for his own safety or for safety of others, or interferes with or obstructs or prevents free use of any street, sidewalk or public way.” West’s Ann.Cal.Penal Code § 647(f). Here, because Mr. Teller was stumbling around it may allude to the fact that he is unable to take care of himself. At the time of his arrest, he was outside the bar on a sidewalk which would be a public place. Thu, the crime would seem to be fulfilled as long as Mr. Teller was in fact intoxicated. Mr. Teller reported there was no evidence to this, however, he later blamed the establishment on over serving his alcohol. This may show that he was in fact intoxicated. Thus, it is likely that Mr. Teller was Drunk in Public.

However, with the question of judicial efficiency and the facts of the case may not be enough the City attorney may not prosecute Mr. Teller on the Drunk in Public. This can be common when there is not a strong case or there was a police error. This is usually left to the discretion of the City Attorney. There is a possibility of a case like this going either way in being prosecuted or not. This is a very common case in San Diego because of all the bars and restaurants located in the area, in addition to the beach atmosphere. Also, this would be on Mr. Teller’s record even if the City Attorney prosecute him. This would go down on Mr. Tellers criminal record as being detained. Which can impact one’s life in a negative way.

Lastly, we will look at how to possibly get this off of Mr. Teller’s record? Mr. Teller would be eligible have this incident sealed under PC 851.8. One is potentially eligible to have your California arrest records sealed and destroyed under Penal Code 851.8 PC if one of the following is true: one was arrested, but the prosecutor never filed criminal charges or that one was charged with a crime but had their case dismissed in court, and lastly one was acquitted by a jury. California Penal Code 851.8. However, it is essential to note that if one is convicted they are not eligible to have the record sealed, even if they were dismissed later on down the road. Here, in the scenario that Mr. Teller is not prosecuted he can have this sealed because he was never charged with the actual crime of Drunk in Public. However, him being detained will possibly still be on his arrest record.

The first step to getting this incident off one’s record would be to petition the law enforcement agency for relief.  In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor.  Each agency, person, or entity within the State of California receiving the request shall destroy its records of the arrest and the request, unless otherwise provided in this section. California Penal Code 851.8. Mr. Teller could contact the San Diego Police Department and try to have this taken off his record which may not work. Sometimes the police will not comply or try to make the process more difficult. This is a tricky process without the help of a legal professional.

If this does not work we must move to the second step. This is where your criminal defense lawyer would petition the court. In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. The prosecuting attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b). (d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading. (e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in the subdivision.  Finding of factual innocence–and associated order to seal and destroy arrest records, shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. California Penal Code 851.8 Factual innocence will exonerate one and show substantial doubt to a person’s guilt. The tricky part that Mr. Teller and his criminal defense lawyer will have in this stage is the burden to prove this factual innocence lies on them. They must show there was not reasonable cause to arrest Mr. Teller in the first place. One is entitled to an appeal if the court does not rule in favor of them.

When one has successfully completed this part of the process then the record will be sealed and destroyed. This means that hen your California records are declared “sealed and destroyed” under Penal Code 851.8 PC, the arresting law enforcement agency, Department of Justice, and any local, state, or federal law enforcement agency to which they have released records must destroy the arrest records, and destroy the request to destroy those records. This will mean there is no record of this event ever happening. Because of this process the incident will never show up on Mr. Tiller’s record. The benefits of having this done is that there are no public record of the event and when one is asked of they have ever been arrested they can legally say ‘no, I have not been arrested.’ Usually one can petition to clear your arrest record under PC 851.8 up to two (2) years after the later of the following: the date of your arrest, or the filing of the accusatory pleading. However, the judge has the discretion to hear motions to seal arrest records beyond these time limits if you can show good cause, which can be extremely difficult to do without the right legal representation. 

This is an extremely beneficial process even though it is complicated. If one has the right layer it can help avoid many hardships in their future.

If you have questions about the criminal process here in San Diego, feel free to contact San Diego Criminal Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Lawyer

Monder Law Group - News

Did Jim Carrey Commit a Crime Being Involved in a Suicide Lawsuit?

Recently, a famous actor, Jim Carrey has been involved in a civil lawsuit over the death of his former girlfriend, Catrhiona White. This is an unusual lawsuit and more of a unique situation, however. This is because Ms. White had committed suicide. Ms. White’s death was caused from which was ruled as an intentional overdose of prescription drugs. The drugs were Percocet, Ambien, and Propranolol. It is also noted that Ms. White was prone to having severe depression. The people bringing lawsuit are Ms. White’s mother and her former husband. They allege in their complaint, against Mr. Carry, that he provided Ms. White with the drugs that she would later overdose on.

Mr. Carry claims that he is torn up about what has happened to his former girlfriend, Ms. White, but he will not lay down and give into these claims and a that a man needs to stand up for some things, and this is one of them. Mr. Carrey has moved to have this lawsuit thrown based on its merits in a Los Angeles court, the motion was denied and as of now, the trial date is set for some time next year.

Ms. White’s mother and former husband are claiming wrongful death, and are also seeking damages from Mr. Carrey in violation of the drug dealer liability act.

We are going to look at if Mr. Carry could possibly have any criminal charges brought against him for the suicide of his former girlfriend.  What crimes could he be guilty of? We will look at murder, the most serious crime. In addition, we will look to involuntary manslaughter, which is still pretty serious but not on the same level as murder. Lastly, we will look at the crime of aiding, advising or encouraging a suicide. Therefore, we will look at the crimes that one can possibly be liable for in relation to a suicide.

The first crime we will look at as a possible charge for Mr. Carry in relation to Ms. Whites suicide would be murder. In California, Penal Code 187 (a) PC, the law defines murder as “the unlawful killing of a human being or a fetus with malice aforethought.” This rule seems pretty simple, which it is for the most part. The unlawful killing of a human being. This means that the killing could not be in self-defense, which would be lawful. Or another example would be a police officer killing another who was going to use deadly force against another. These are lawful. Though Mr. Carry did not technical kill Ms. White, because it was a suicide we can act as if it was found that Mr. Carry, because of his actions, killed Ms. White. If this did occur it would not be lawful because he was not in danger or any weird situation like that. Also, it has to be another human being. Because Ms. White is another human this is obviously meant.

The more difficult analysis of this crime involves the tail end of the murder statute, malice aforethought. This is what is known as the proper mental state required to be guilty of this crime. Malice aforethought is complicated to define first case law states that “the mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim.  When a defendant ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,’ he acts with malice aforethought.” People v. Summers (1983) 147 Cal.App.3d 180, 184. This is also added with the explanation of that there expressed malice through actions. Express malice means that you specifically intend to kill the victim.  Malice is implied when: (a) The killing resulted from an intentional act; (b) The natural consequences of the act are dangerous to human life; and (c) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. CALJIC 8.11. This is what would be extremely difficult to prove that Mr. Carry had while this suicide occurred. There most certainly would not be expressed malice, this is because handing Ms. White prescription pills is not comparable to shooting a person in the head or the chest. Where death is basically a guarantee. In addition, we would have to see if Mr. Carrey’s action were those that were indifferent of human life. It would seem as if it was not. Because Mr. Carrey could make the argument that Ms. White needed the medication to help sleep or help with her other illnesses. Essentially that Mr. Carrey wanted nothing like this to happen, and it was not a given that death would result from his actions.  Thus, murder would not be applicable in this suicide case or a situation that is like this.

The next criminal charge we will look into as a possibility will be involuntary manslaughter.  Involuntary manslaughter in California is the unlawful killing of a human being without malice. It is of three kinds: (b) Involuntary–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. California Penal Code 192. Case law furthers the concept of involuntary manslaughter by stating that, “We agree that the only logically permissible construction of section 192 is that an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection. People v. Burroughs (1984) 35 Cal.3d 824, 835. As discussed above, there was a death of another, which is Ms. White. This crime is closer to the Mr. Carrey situation, because it takes out the need of the mental state that murder requires. Since this is involuntary the death can be unintentional. The part that we have to look at is whether Mr. Carrey acted without due caution when he allegedly gave Ms. White the prescription drugs. This is a question that a jury would decide and seems like it could go either way. Mr. Carrey could argue that it is no way foreseeable that Ms. White would kill herself, moreover that there is no way to tell if she acted with intent to kill herself that she the death was an accident of overdose, though this would be hard to argue. The State would probably say Mr. carry was are of her problems with depression and gave her drugs was negligent, which means that Mr. Carrey should have known of this risk. This seems like a stretch but could be possible. Michelle Carter was recently convicted of manslaughter for a text she sent to a boy which lead him to kill himself, so it is within the realm of possibilities that one can be guilty of involuntary manslaughter with a suicide. In addition, Mr. Carrey did commit a felony by giving Ms. White the prescription drugs. This would be the distribution of drugs, even though they were Mr. Carrey’s he could not legally give them to others, like Ms. White. However, this is not an inherently dangerous felony as the statute refers to. Inherently dangerous refers to robbery, rape, arson and crimes more so in that category.

We would have to also look at if Mr. Carry caused the death. We can see that but for him giving her the prescription drugs she would still be alive. But there is a flaw in the foreseeability aspect of this causation. It is hard to foresee that one would commit suicide off of prescription pills, but we do not have all of the facts and circumstances, so there may be an argument that it was foreseeable. Moreover, there was an intervening human action, Ms. White. There would have to be an analysis on foreseeability once more in her actions. Thus, this would likely fail on the question of whether Mr. Carrey caused Ms. White’s death.

If you have any questions about the criminal process, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney

Thus, it does not seem likely that Mr. Carrey could be convicted for involuntary manslaughter for the death of Ms. White, but it is possible.

The Last crime we will analyze is aiding, advising, encouraging a suicide. Case law has said that in order to obtain a conviction for aiding, advising or encouraging a suicide, it is necessary to establish all of the following essential elements: (1) the defendant specifically intended the victim’s suicide; (2) the defendant undertook some active and direct participation in bringing about the suicide, such as by furnishing the victim with the means of suicide; and, finally, (3) the victim actually committed a specific, overt act of suicide. In re Ryan N., 112 Cal. Rptr. 2d 620 (Cal. App. 1st Dist. 2001). This crime also circles around to the intent element that we are unsure that Mr. Carrey had. For one to be guilty they had to specifically intend for the other to commit suicide. It does not seem as if Mr. Carrey did have this intent. He says that he loved Ms. White. In addition, there are no facts that show Mr. Carrey had anything to gain from Ms. White’s death. Also, we do not know if Mr. Carrey said to take a certain amount of pills in order to achieve suicide. In regard to the second element, I think we can see that Mr. Carrey fulfilled that because he furnished Ms. White with the means of suicide by giving her the prescription drugs. The last element would be meant because Ms. White was successful in killing herself.

Therefore, it does not seem as if Mr. Carrey is guilty of any of these major crimes.

Monder Law Group - News

Understanding the Fabio Sementilli Capital Murder Trial

In January, Fabio Sementilli was found stabbed to death and beaten on the patio of his home in the 5000 block of Queen Victoria Road in Woodland Hills. Most of the knife wounds were to his neck and upper body. Fabio, 49, a Canadian born resident of Woodland Hills, worked for decades as a trendsetting hair stylist and served as vice president of education for the beauty products company Coty, Inc. Fabio 2008 Porsche 911 Carrera was also stolen and then found a few days later just 5 miles from his home. The police thought at first that this death occurred during a home invasion robbery when Fabio was home alone. They said video surveillance of two men in all black clothes jogging by the home. However, after the police completed their investigation they discovered that this was not the case. They came to the realization that this was, in fact, a murder. Not only did they discover it was what they think is murder, but that his wife, Monica Sonia Sementilli is involved with the crime. It is stated that her long time love affair, Robert Louis Baker, was one of the men who actually killed Fabio. Baker is suspected of breaking into Fabio’s home and then fatally stabbing the victim, according to the D.A. Baker is also suspected of stealing Fabio’s Porsche. Authorities said it appears that Monica is the mastermind behind the whole crime. Police believe the motive was Sementilli’s $1.6 million life insurance policy. They also said Baker and Monica were having an affair for a little more than a year. Baker also has a prior police record and is a registered sex offender. Both Baker and Monica are being held without bail and their arraignment hearing is scheduled for June 29. Detectives are also looking for a third suspect, described as a man with a stocky build, standing between 5 feet 6 inches and 5 feet 7 inches tall. He was wearing a hooded sweatshirt at the time of the murder. If Baker and Monica are convicted as charged, they face the death penalty or life in prison without the possibility of parole. The decision to seek the death penalty will be made at a later date, according to the D.A. in his interview with the news.

The question we will look at is why can Monica Sonia Sementil be charged with the murder if she did not commit the act? Because she did not actually do the crime we will discuss aiding and abetting which is the same as an accomplice. In addition to that, we will also look at the conspirator laws.

The first crime we will look to see if it is applicable to Ms. Sementil is aiding and abetting to murder. The legal definition to aiding and abetting is spelled out as all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed. California Penal Code 31. This is a very dense statute and can be convoluted. But the essence of the crime is that anyone who is involved with a crime who helps in the slightest or encourages the crime is liable for the crime.

The California jury instructions help us understand by further breaking aiding and abetting into elements. A person aids and abets the commission or attempted commission of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. California Jury Instructions Criminal CALJIC 3.01. Here, Ms. Sementil has alleged planned the murder of her late husband, Fabio. If this allegation is true then she would have knowledge of the unlawful acts that would eventually occur. If this is the case then the first element is meant. The Prosecution can show this by text message, phone calls or any other forms of communication possibly. Ms. Sementil may claim that she had no idea and that Mr. Baker killed Fabio because he was jealous of his and Ms. Sementil relationship. But this will have to be proven by the state in order to fulfill the first element. It would also have to be shown that Ms. Sementil had the specific intent for this crime to occur. This is what the news article somewhat alluded to when they talk about the $1.6 million dollar life insurance policy that was placed on Fabio. This is what the motive was and the Ms. Sementil and Baker had the intent to kill him for this reason. It also can be inferred by the fact that Fabio was stabbed in the neck multiple times because that is a vital body part that a deadly weapon, the knife, was used upon. The last part of advising and abetting is whether Ms. Sementil acted or advised, aided, promoted, encouraged instigates the commission of the crime. With limited facts we do not know whether this is true. But encourage could be as simple as Ms. Sementil telling Mr. Baker that if he did this they could take the money and run off together or be more public with their relationship. Once again because of the limited facts we are unsure but there us a strong possibility that Ms. Sementil could have been an accomplice to her late husband, Fabio’s murder.

The punishment for aiding and abetting are as follows, each individual convicted of aiding and abetting under the California Penal Code will be regarded as a “principal” to the crime and is subject to the same penalties and consequences as if they personally committed the offense. The only exception to this rule applies to murder prosecutions, discussed in the next section. This is why Ms. Sementil would be guilty for the murder of Fabio.

Now we will look at whether there may be a conspiracy charge that could be applicable to Ms. Sementil. A conspiracy is when two or more persons conspire: (1) To commit any crime. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. An overt act is kind of tricky so for further understanding we look to case law which states that Supreme Court held that “acts committed by conspirators subsequent to the completion of the crime which is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy.”  Requiring that the overt act precedes a commission of the crime is consistent with the controlling statutory language. An agreement becomes punishable only upon the doing of an act “to effect” the object of the agreement. (§ 184.) The object of a punishable conspiracy is commission of a crime. (§ 182, subd. (a)(1).) The verb “to effect” means “to bring about; produce as a result; cause; accomplish.” People v. Brown 226 Cal.App.3d 1361, 1368. There are two parties and from the article, it seems like there is actually three Which fulfills that part of the conspiracy charge. Their crime was the murder of Fabio, which did occur. The state would have to look for an agreement as motioned above through phone or any other communications that may show that this crime was planned between the parties. This would also fulfill the tricky part of an overt act, because the crime did happen the overt act would be a given.  This could have been as simple as buying a weapon for the crime. In addition, they did have an agreement. This would show that there would be a strong likelihood that there is a possible conspiracy.

The punishment for conspiracy is stated as Members of a conspiracy are criminally responsible for all of the crimes that are committed by any of the co-conspirators if they are committed in furtherance of the conspiracy. This is the case even if some of the members are not aware of the other crimes. In addition, it is not at all uncommon for a defendant to be convicted of the conspiracy but acquitted of the underlying crime.  It bears repeating that the conspiracy and the crime that is the subject of the conspiracy are completely separate you can be convicted or acquitted of one or both. This is how Ms. Sementil can be held liable for the murder of Fabio.

Therefore, even though Ms. Sementil did not personally kill Fabio she can be guilty of murder if she is found guilty of aiding and abetting or conspiracy.

If you have questions about the criminal process, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Lawyer

Monder Law Group - News

Terminally Ill Cancer Patient Attempts to Kill Doctors

 Yue Chen was diagnosed with Cancer and had been informed that he would not live much longer. Mr. Chen had been going to multiple specialists in the field for treatment of his worsening condition. Even though Mr. Chen went to all of the visits and went through some treatment there was nothing that could have been done for him. Mr. Chen had now reached stage four cancer. His time was now limited.

On May 31^st, 2017, Chen’s family had reported him missing. Police had to go to the Chen family home and the investigating officers had found a typed note. The notes stated, “had to kill these doctors because they are evil.” In addition, Mr. Chen’s computer search history had shown that he had been looking up the doctors and where they live and different offices. Also, two guns with high capacity clips that were registered to Mr. Chen were missing. Mr. Chen said that the doctors treated him like a laboratory experiment, as if he were an animal and not a human. He also states that the doctors hurt his spine on purpose while teaching new medical students.

Mr. Chen was caught by the California Highway Patrol just 20 miles outside of Palo Alto, California. In the car, there was a white rubber mask, a notebook with names, addresses and directions to the homes of several doctors and two loaded guns inside his car. In addition, there was another titled, “Why do I Kill.” The explanation for the killings was once again because how the doctors had treated him and that they were “evil” toward him.

What crime did Mr. Chen commit? Mr. Chen most likely would have committed attempted murder. To prove that the defendant is guilty of attempted murder, the People, or prosecution, must prove that: (1) the defendant took at least one direct but ineffective step toward killing another person or a fetus; AND (2) the defendant intended to kill that person or fetus. California Criminal Jury Instruction 600. There are some nuances to these particular elements that should be looked at in greater depth so that it is clear whether Mr. Chen did or did not commit attempt murder.

The first question we have to ask ourselves is whether Mr. Chen took at least one direct but an ineffective step toward killing another person, the doctors in this case.  A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. Cal Crim 600. Here, Mr. Chen did the initial of research on his computer when he looked for the doctor’s location and offices, he may be planning, but it is not necessarily a direct step. It may not be a direct step because it is not really in a direct movement toward the commission of the crime of attempted murder. However, there would more than likely be a direct step by printing off names and addresses of the doctors and buying a rubber mask. But there could be an argument that this is still merely preparation and not a direct step. But it would surely be a direct step when you add all of these acts together and the get in the car with two guns. This is where the direct step was triggered. Because of Mr. Chen’s action here, there would be a direct step taken to murder the doctors. Therefore, because of this direct step the first element to attempt murder would have been fulfilled.

The second question would be whether Mr. Chen intended to kill the doctors. The rule for intent in regard to attempt murder is usually seen as “These elements are related; usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act. People v. Ramos 18 Cal.Rptr.3d 167. (2004). Here, this is pretty easy to fulfill because of the circumstances involved in the case. Mr. Chen wrote, “Why Do I Kill.” Because of that letter, it would basically be enough for the second element in attempt murder. But there is more, the fact he had two guns on him, the addresses of the doctors and future victims.  A mask to hide his identity. Lastly his thought of the doctors being pure evil. All of these circumstances show that Mr. Chen did have the specific intent to kill the doctors.  

Also, a person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or “kill zone.” In order to convict the defendant of the attempted murder of the doctors on the list, the People must prove that the defendant not only intended to kill the doctors on the list but also either intended to kill the doctors or intended to kill all the doctors he comes across in the office. There is really no evidence of this. Because there is no evidence that Mr. Chen wanted to kill all doctors it is unlikely that he can be found guilty of multiple doctors in offices. With the evidence, it is likely that Mr. Chen will only be charged with the doctors on the list that he had printed from his computer. Thus, Mr. Chen has completed the second element to attempted murder because he did have the intent to kill the doctors.

Next, we will look to see if this is a first degree or a second-degree attempted murder. For the crime to be a first-degree attempted murder Mr. Chen would have had to act willfully, deliberately, and premeditate the act. Second degree murder is none of those things. The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. Cal Crim 601. Here, because Mr. Chen had spent a good amount of time getting ready for the attempted crime it would more than likely be a first-degree attempted murder. He spent time deliberating because he went online looked for the victims address and offices in order to find them. This is not something that one could describe as impulsive or a rash decision.  Therefore, it is likely that Mr. Chen had committed a first-degree attempted murder.

Lastly, we will look at the punishment Mr. Chen will possibly receive. When one is guilty of first degree attempt murder they are looking at a life sentence with the possibility of parole. Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. Penal Code 644. However, we should not that Mr. Chen is facing multiple counts because there was more than one victim. This could add upon the years. Also, it depends on how many victims the state finds.

In addition, the California “use a gun and you are done” law may be applicable to Mr. Chen. Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. California Penal Code 12022.53. Because Mr. Chen had two guns with him this could possibly add to his overall sentence by ten years. Because it is first degree and Mr. Chen used a gun he may be facing a serious amount of time in state prison.

Therefore, Mr. Chen would most likely be guilty of multiple counts of first-degree attempt murder.

If you have questions about the criminal process, please feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Attorney .