Court of Appeal Recuses Orange County District Attorney’s Office in Murder Case

On November 23, 2016, the Fourth District Court of Appeal affirmed the Superior Court’s Decision  recusing the entire District Attorneys Office in Orange County [OCDA] in the penalty phase of a case in which the defendant had previously pled guilty to eight counts of murder. The Superior Court concluded the OCDA had such a severe conflict of interest (its duty to fairly prosecute a case under the rule of law) with the [OCSD] Orange County Sheriff’s Department (in which the loyalty by prosecutors to  the sheriffs conflicted). As a result, the court held  it was unlikely the defendant could have a fair trial. This determination came after hearings over a period of six months in which nearly forty witnesses testified as to the systemic, known and prejudicial use of confidential informants that violated the constitutional rights of inmates, along with substantial discovery failures of the OCSD.

The ruling came after a  murder trial heavily reported by the media involving a defendant who with a barrage of gunfire killed eight individuals at a hair salon where his former wife was working. Although the Deputy Public Defender representing the defendant eventually discovered sheriff’s deputies were using confidential jailhouse informants to solicit incriminating statements from high-profile defendants, the District Attorney’s Office and its prosecutors on an ongoing basis failed to disclose this practice.


California Death Penalty. Vote November 8th

There are two measures  that deal with the death penalty in California that are on the ballot in the forthcoming November 8th election. California has the largest number of inmates awaiting the death penalty of all the states. The last execution in California was about ten years ago when it was legally challenged because of a claim, among other things, that the process of using lethal injections was inhumane. The last attempt to abolish the death penalty occurred in 2012.

The first measure on the ballot is Proposition 62, which replaces the death penalty with life in prison without any possibility of parole and applies retroactively to all previous and existing cases in which anyone is currently incarcerated and facing the death penalty. If enacted into law, it will [also] apply to all future first degree murder convictions in which the death penalty would have been the sentence. In September of this year, a Field poll was conducted of likely voters and found that a plurality of voters (the most posted online votes, but not a majority of all votes which would be over 50%) wanted to abolish the death penalty and, therefore, voted that it be repealed. It is noteworthy that there were a substantial number of “undecided” voters, however,  and they will likely make the difference in the outcome on November 8th.

Those that oppose the death penalty cite, among other things, the following reasons: it is unfairly applied to minorities, the procedure is inhumane, and the process is costing far too much to the people of the State of California. Proponents of execution as the form of punishment assert this penalty is reserved for what can best be described as a most heinous and despicable crime against humanity, causing unparalleled and life long suffering to the families of such victims; and, there are newly developed procedures associated with death penalty cases that are being considered.

The second measure on the ballot, Proposition 66, is considered a competing measure and much different than Proposition 62 in that it speeds up executions and the death penalty process by requiring the outcome of a defendant’s appeal to not take more than five (5) years. A little over 1/3 of those in the Field poll noted above were in favor of this Proposition, but more importantly, about 42% of those who were polled were “undecided” and will indeed make a difference in the outcome of this Proposition.

To promote justice for whom they claim at this point in time are at least 1000 victims and their families, there are District Attorneys in the multitude of California counties, the California Highway Patrol Association and Peace Officers Association, along with victim advocates who are among those behind Proposition 66 declaring it to be much needed. The Office of the California Legislative Analyst reported when it last made a study it costs nearly $50,000 per year per inmate to be incarcerated in our State Prisons. The cost of a death row inmate is about $90,000 more per year due to the costs of lengthy and complex appeals to the California Supreme Court, which currently has a backlog that can take ten or more years for a ruling.

Today, there are about 750 Death Row inmates that for decades have been incarcerated in prisons. Proponents of Proposition 66 also note such inmates get three meals a day in state prisons that have heating and air conditioning; with access to cable TV and a library; and each receive nearly unlimited heath care, including but not limited to eyeglasses; dental care; hearing aids; hip, kidney, knee, heart and sex change surgery, all of which are often far better than most of us who do not get free health care, including senior citizens who often cannot afford the escalating cost of living, prescription medicine and/or a satisfactory long term care facility. In summary, these are stated as further grounds to support Proposition 66 and limit the current delays and streamline the criminal justice system in California.

If both measures were to pass on November 8th, then the one with the greatest number of votes will become law in California.

You are urged to vote on these and other critical issues that concern all of us in the forthcoming election.

Appeals Court Upholds California Death Penalty

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Senate Committee Approves Eliminating and Reducing Certain Criminal Sentences

On January 30, 2014, the Senate Judiciary Committee approved a bill that would abolish mandatory minimum sentences for drug offenders who do not have a prior criminal history, as well as reducing by 50% mandatory minimum sentences for specified nonviolent drug offenses. The proposed law among other things eliminates mandatory minimum sentences if there is a finding by the Judge that the defendant does not have any previous conviction for crimes involving a firearm, violence, terrorism, a sex offense, racketeering or conspiracy involving illegal drugs. It would also reduce mandatory minimum sentences from 20 to 10 years, from 10 to five years, and from five to two years. There would be no change lowering the maximum sentence.

Opponents believe this law could result in prosecutors being unable to curtail gangs and drug organizations (drug cartels, etc.). Moreover, it is argued that there are very few criminals in federal prison for only simple drug possession, and the rest are mainly drug dealers that are the subject of the bill.

Proponents site the overcrowding and excessive costs of our Federal prisons, the latter estimate being as much as $3 billion over 10 years. They also claim the current laws do not sufficiently distinguish career criminals from low level offenders, and further that nonviolent drug offenses only would be the subject of the new law if it is passed by the full Senate, and goes through the rest of the process in which new laws are made.

What Evidence is Required to Establish Aiding and Abetting a Crime?

On November 12, 2013, the U.S. Supreme Court in the case of Rosemond v. United States, #12-895, on Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit, heard oral arguments.

The underlying case involved the issue of whether the jury instructions were adequate and the offense of aiding and abetting the use of a firearm during a drug trafficking offense can be established by the mere fact an individual knew (he had foreknowledge) the principal offender had a firearm or there must be proof that the individual acted with actual intent to encourage &/or enable the use of the weapon by the accomplice and, therefore, there was actual intent to further the crime in question. The various U.S. Circuit Courts of Appeal have been divided on interpreting the law, although in California the Ninth Circuit requires purposeful intent.

This is a fundamental issue that has been raised in countless situations; for example, the driver of a vehicle (wheelman) &/or a passenger in a car is aware an accomplice is carrying a weapon during a bank robbery. Criminal defense lawyers have maintained that knowledge is not intent, and this individual needs to intend the gun be used by the accomplice. The government has argued in these cases that if one participates in a crime knowing his accomplice has a gun then that constitutes intent to facilitate; they maintain it is irrelevant if the person wants his accomplice to use it or not.  

Besides the disparity in standards of proof in the various circuit courts, the significance in the case at hand goes to the huge sentence enhancement imposed upon the defendant, namely 14 years instead of 5 years as a result of the disparity in the particular and minority tenth circuit.

The official transcript of the oral argument in the Rosemond case can be viewed at

Alleyne vs. the United States

On June 17, 2013, the U.S. Supreme Court in the case of   ALLEYNE vs. UNITED STATES, Case # 11–9335, in a 5-4 opinion, overruled the 2002 Supreme Court case of Harris v. United States, 536 U. S. 545, and in doing so held any mandatory minimum sentence that increase the penalty for a crime must be submitted to the jury for their determination of the actual sentence.

Here the jury form documented the defendant used or carried a firearm as part of his crime, but not that the firearm was brandished, which increased the penalty to a 7-year mandatory minimum sentence instead of the 5-year minimum. Even though his counsel objected because the verdict form was not correct and, therefore, violated his Sixth Amendment right to a jury trial, the District Court overruled the objection, by relying upon the case of Harris vs. United States. The Fourth Circuit Court of Appeals affirmed the Harris decision ruling it is permissible under the Sixth Amendment for judicial fact finding that increases the mandatory minimum sentence for a crime. The Supreme Court overruled the Harris decision, vacated the judgment of the Fourth Circuit and remanded the case, holding brandishing is a fact that increases the prescribed range of penalties mandatory minimum sentence and as such is an element of a crime that must be submitted to the jury for its determination as to whether the prosecution proved that specific detail beyond a reasonable doubt.

Accordingly, if a judge intends to impose a higher sentence than the minimum mandatory penalty, he cannot do so unless the jury concludes the underlying legal conclusion is supported by a fact, which on turn is supported by evidence beyond a reasonable doubt.

Read more here.

Man Sentenced 22 Years for Criminal Threats


A man who was shot by police inside a Carmel Mountain movie theater after he confronted his ex-girlfriend at gunpoint at her workplace was sentenced Monday to 22 years and four months in state prison.

Tom Billodeaux, 22, pleaded guilty in February to four charges, including assault with a firearm on a police officer and making criminal threats.

Defense attorney Beth Ulch said Billodeaux had a rough childhood, with his mother being out of the picture and his father dying when he was 11. Billodeaux was adopted by his cousin but did drugs and alcohol with friends, Ulch told Judge Laura Halgren.

Ulch said the defendant’s girlfriend had broken up with him the night before the Jan. 12 incident, leaving when he passed out from drinking.

On Jan. 12 about 2:20 p.m., Billodeaux confronted the woman at gunpoint nd threatened to kill her in the parking lot of a shopping center in the 11100 block of Carmel Mountain Road, near the restaurant where she worked, prosecutor Kurt Mechals said.

The woman’s supervisor tried to wrestle the gun away from the defendant and a security guard intervened, allowing her to get away, according to the prosecutor.

More than an hour later, officers tracked Billodeaux to the Reading Cinemas Carmel Mountain 12 complex and found him sitting alone in a theater where a movie was being shown.

Billodeaux initially complied with verbal commands to determine if he was armed but then lowered his hands into his lap, raised a handgun and turned it toward an officer, according to police.

Officer Addam Ansari opened fire, striking the defendant in the chest and arm.

“Officer Ansari had no choice but to shoot him (the defendant),” Mechals told the judge.

A second officer was present but did not fire his weapon, police said. No one else was injured.

Mechals said Billodeaux’s prison sentence was warranted, noting that he pointed his gun at three people that day.

“It’s unacceptable,” the prosecutor said of Billodeaux’s actions. “(The victim) had the audacity to break up with him. This is entirely unacceptable.”

Prison for former USD player


University of San Diego’s former basketball star, Brandon Johnson, was sentenced to 6 months in federal prison today. The 26-year-old admitted to his participation in a game-fixing scheme, which involved an illegal sport gambling operation and marijuana distribution. According to the report three other defendants, who are considered “primary defendants”, are awaiting sentencing.

Johnson pleaded guilty to unsuccessfully soliciting another university player, but he did so without a formal plea agreement. According to the report, prosecutors expressed Johnson as a willing accomplice and as showing little remorse.

Michelle Le’s Killer Sentenced – The judge said he never saw any signs of remorse (Sam Spital)

“NBC Channel 7 News reported on December 10, 2012 in its online news edition the imposition of 25 years to life in the sentencing hearing of a nursing student after a jury found her guilty of first degree murder in the killing of a former fellow high school student who prosecutors opined occurred as a result of jealousy because she was having sex with her previous boyfriend.

The defense attorney argued the crime was not premeditated, occurred in the ‘heat of passion’ and, therefore, should not have been deemed first degree murder. The Superior Court Judge disagreed and in reading the verdict stated the crime was ‘cold blooded’ and the defendant showed no remorse.

There are whole panoply of elements that are critical to the defense that can and should be presented in court if not previously in a written format for the Judge to consider in sentencing, such as the absence of a criminal history and mitigating evidence. However, none of these factors were reported in the article for a balanced account to better evaluate the case.”

Articles: Delinquency

November 02, 2004
By Blair Clarkson
Daily Journal Staff Writer

LOS ANGELES – The juvenile-delinquency court has been called everything from a revolving door to the unwanted stepchild of the justice system. Critics lament a sloppy system that strands minors in youth camps for months or years without effective treatment, only to send them back to court soon after their release.

The new state Rule of Court Section 1479, unveiled in July and presented to lawyers, social workers, judges and child advocates at a family and children’s law conference on Friday, attacks the problem by expanding the delinquency attorney’s role to include advocacy after the court case is finished.

“It’s giving emphasis to a new and important way to start representing kids,” said Jo Kaplan, a prominent delinquency lawyer and juvenile-court commissioner. “This rule says that delinquency counsel have a responsibility to see that the delinquent gets treatment.”

“If you don’t advocate for them to get treatment and services, they’re never going to get better,” Kaplan told an audience at the 9th annual New Beginnings conference in Los Angeles. Objectors, however, said delinquency attorneys have full calendars and lack the time and money to act as social workers for each of their clients.

While Joan Croker, head deputy in the juvenile division of the Los Angeles County public defender’s office, supports post-disposition advocacy, she says financial realities make it impossible. “In a perfect world, we would do this for every single client,” Croker said. “But nobody can afford that. The system doesn’t have the time. We need more funding to do it the way it should be done.”

Delinquency attorney Pat Rice, who joined Kaplan on Friday, insisted the job can be done. “Scheduling will be a hassle with juggling new hearings and follow-ups, but you’ve just got to do it,” Rice said. “All we really have to do is think a little differently.” The new rule outlines a dual role for delinquency lawyers. In addition to learning everything possible about a client’s particular mental health and personal life, the advocate must review the client’s treatment plan continually, see that it is fully executed in rehabilitation camps and work with the child toward permanent solutions. The extra work will cut into the high recidivism that attorneys say is a product of lack of follow-up to ensure that the delinquent child receives the particular educational or psychological services he or she needs in youth camps and juvenile facilities.

An Orange County report cited by the League of Women Voters Juvenile Justice Commission found that 8 percent to 12 percent of juvenile offenders accounted for 60 percent of juvenile crimes. “Nobody ever checks up on these kids,” Kaplan said. “This is really an opportunity for lawyers to figure out a way to check on their clients to see that they’re getting the remedial help they need.” Recent scathing rebukes of the California Youth Authority and other juvenile camps have raised awareness among delinquency advocates about the dearth of services for children in the system. The state has the highest rate of youth incarceration in the country, and overcrowding has limited youth camps’ ability to provide help, according to the state legislative analyst’s office. A concerted effort to correct these problems is long overdue, said Sue Burrell, a staff attorney at the Youth Law Center. “This rule says very loudly that cases should be brought back to court if kids aren’t getting what they need at camps,” Burrell said. “One of the sad things is that everybody acts as though the case is over after disposition. “But that’s when the whole rehabilitation process is supposed to take place.” Yet Burrell, a former L.A. County public defender, acknowledges that more funding and staffing and lighter caseloads will be needed to offset the huge amount of additional work and investigation demanded from delinquency attorneys. “The system has to provide resources to make sure it can be done,” she said. “It’s hard to expect that public defenders can do all this without help.”

Sam Spital, a former deputy attorney general and probation officer now representing delinquents at Spital & Associates in San Diego, says he has little pity for critics of the rule change.

“If you don’t have the time to follow up with your clients, don’t take the case,” Spital said. “Is it about the money you get or about keeping them from coming back into the court system?”

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