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Oct 18 2012 California Appeals Court Reverses Remands with Direction the Trial court Dismissing and/or lowering the Charges on Howard K. Stern and Dr. Khristine Eroshevich

The clear thing that sticks out if the first paragraph:

The People of the State of California appeal after a series of rulings which resulted in the dismissal of charges against two defendants, Dr. Khristine Elaine Eroshevich and Howard Kevin Stern. Mr. Stern?s new trial motion was granted. Two conspiracy counts were then dismissed pursuant to Penal Code1 section 1385, subdivision (a) (section 1385). We will reverse the new trial and dismissal orders.

Next the Court gives some directions to Judge Perry Court of alternative positions to take to still dismiss the charges on Howard K. Stern:

We agree with the prosecution that Mr. Stern?s new trial motion could not be granted nor the charges dismissed on the ground the evidence was insufficient as a matter of law. But, as we will explain, what can occur to Mr. Stern once the remittitur issues is limited by the double jeopardy provisions of our Constitutions.

Here, we conclude the trial court incorrectly granted Mr. Stern?s new trial motion; the evidence was not insufficient as a matter of law. As will become clear, the former jeopardy effect of the erroneous order granting Mr. Stern?s new trial motion is the same as an acquittal. Similarly, we conclude the trial court dismissed the charges against both defendants based on an erroneous finding the evidence was insufficient as a matter of law. Thus, we reverse the orders granting Mr. Stern?s new trial motion and dismissing the case pursuant to section 1385 as to both defendants. Once the remittitur issues, the trial court may take up the remaining new trial motion issues, dismiss on other grounds pursuant to section 1385, or even impose sentence. But, there is one thing the trial court may not do and that is to order Mr. Stern to be retried.

Some background on the proceedings are given by the Court of Appeals:

Dr. Kapoor was acquitted of all charges. As to count 3, the jury found defendants conspired between June 5, 2004, and September 10, 2006. As to count 1, the jurors found defendants conspired between September 11, 2006, and February 8, 2007. The jury found defendants conspired to commit two crimes. The first target offense was to obtain controlled substances by fraud, deceit or misrepresentation or concealment of a material fact. (Health & Saf. Code, § 11173, subd. (a)2.) The second target offense was to unlawfully give false names or addresses in prescriptions for controlled substances in violation of Health and Safety Code section 11174.3

Dr. Eroshevich was also convicted of two other charges. She was convicted in count 7 of obtaining controlled substances by fraud or misrepresentation in violation of Health and Safety Code section 11173, subdivision (a). Further, she was convicted as charged in count 9 of giving a false name or address in a controlled substance prescription in violation of Health and Safety Code section 11174.

Next we have a summary of the Trial Court’s Ruling of Judge Robert L. Perry:

Howard K. Stern

Preliminarily, the trial court found Ms. Marshall suffered from chronic pain syndrome; further, her “drug-seeking behavior” was primarily due to inadequate control of pain rather than addiction. The trial court was further persuaded the overriding purpose in procuring controlled substances in names other than Ms. Marshall?s true name was to protect her privacy. With respect to prescribing medications in a false name, the trial court concluded the law was vague as to what constitutes a false name. The trial court found no basis for charging a conspiracy ending on September 10 and a new one beginning the very next day on September 11, 2006. More significantly, the trial court found, “[T]here is [no] evidence in the record at all that Howard Stern lacked a good faith belief that the practice of obtaining prescription medicines for [Ms. Marshall] in names other than [her true name] could be against the law.” The trial court found Mr. Stern acted to protect Ms. Marshall?s privacy, as had most of the doctors and hospitals that had dealt with her. The trial court concluded: “When I consider all the evidence, and even viewing it in a light most favorable to upholding the verdict, I find it is clearly insufficient. Under these circumstances, I find no reasonable trier of fact could find that Howard Stern had a specific intent to violate either of these target crimes . . . and I do grant a motion for new trial to Mr. Stern on these [conspiracy] counts . . . .” Immediately after granting Mr. Stern?s new trial motion, the trial court stated: “[B]ut I?m going further. [¶] I find the evidence at trial was so lacking and insufficient to show a specific intent to join a conspiracy on the part of Howard Stern to commit these target crimes, that I do believe the interest of justice supports the dismissal of these counts as to Mr. Stern, and I so order. And this, of course, is under Penal Code section 1385 . . . .”

The minute order prepared for Mr. Stern sets forth the trial court?s reasons for dismissing counts 1 and 3 as required by section 1385: “On the court?s motion, counts 1 and 3 are dismissed due to insufficiency of the evidence. [¶] The court further clarifies that it is dismissing counts 1 and 3 in their entirety, which includes all hung target offenses, due to insufficiency of the evidence as a matter of law pursuant to Penal Code section 1385.”

Dr. Khristine Eroshevich

Having dismissed the conspiracy counts as to Mr. Stern, the trial court turned to Dr. Eroshevich?s motion. The trial court concluded: “I don?t think there was an agreement between the two of them to violate the law, and . . . I don?t think the conspiracy counts can stand [as to Dr. Eroshevich], and so I dismiss those as well . . . .” The clerk?s minutes for Dr. Eroshevich contain no statement of reasons for the dismissal. The minutes state concerning Dr. Eroshevich: “The cause is argued and the court grants defense motion to dismiss counts 1 and 3 pursuant to . . . section 1385 due to insufficiency of the evidence.” No other language pertinent to the dismissal of counts 1 and 3 as to Dr. Eroshevich is contained in the clerk?s minutes. We will later discuss the effect of the absence of any language in the trial court?s oral order or the clerk?s minutes concerning: the substantial evidence standard of review; having viewed the evidence in a light most favorable to the verdicts; and that no reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Hatch, supra, 22 Cal.4th at p. 273; People v. Salgado, supra, 88 Cal.App.4th at p. 10.)

However, the trial court denied Dr. Eroshevich?s motion for a new trial or to dismiss as to counts 7 and 9: “I choose not to disturb the jury?s verdict regarding [Dr.] Eroshevich on counts 7 and 9. There is no doubt in the court?s mind that based on the evidence [Dr.] Eroshevich acted out of a heart-felt desire to help her friend. Obtaining a prescription in the name of another person, Charlene Underwood, without [Ms.] Underwood?s knowledge or consent was clearly wrong and constituted a violation of the law. As a doctor[,] [Dr.] Eroshevich well knew she should not have done this and it is clear to the court that she acted with the required intent to defraud.” However, the trial court “vacated” the count 9 conviction on grounds it was not appropriate to punish Dr. Eroshevich twice for the same act. The trial court then reduced count 7 to a misdemeanor. The prosecution has not appealed the trial court?s orders with respect to counts 7 or 9.

However, DON’T get to excited here, the Appeals Court gave Judge Perry several options to dismiss the charges or other options but not that of a NEW TRIAL. This is becoming the cases that never ends!

After I read through this I will be back with more to say! So stay tuned to Rose Speaks.com tonight as we unravel what this opinion actually means and share what you think it means after you read it!!!!!

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©Rose Turner
October 18, 2012
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The only surprising thing today was the remanding and revoking bail. We all thought Murray would be convicted. John has said on many shows this was like musical chairs and when the music stopped Murray was left standing with the Propoful bottle in his hand.

Murray barely had time to look back at his mother and girlfriend before being taken into custody and whisk out of the court room.

Straight Talk with John J Nazarian guest tonight is Criminal Defense attorney Adam Braun, who has been both a prosecutor and now one of the top criminal attorneys in California. Braun will answer questions of what now? Over crowding in the jails, why the revoking of bail? Can the defense appeal based on Dr. Klein never appeared in trial which was a major set back most say to Murray? Will Murray get house arrest or a retreat like Ryan Bowman did for involuntary manslaughter in the Lauren Freeman case, at camp Seal on the California coast line.

Adam Braun is one of the best criminal defense lawyers in California. Braun is the Principal at Law Offices of Adam H. Braun and was a Federal Prosecutor at the United States Attorney’s Office for over 6 years. The Princeton University graduate represented Dr. Khristine Eroshevich during the lead up to the Anna Nicole Smith trial. Braun was the attorney for one of Anthony Pelicanno’s co-defendants.

In other bizarre interviews we have Dr. Arnold Klein on what looks like his golden throne.

“Dr. Arnold Klein said he personally tried several times to prevent other doctors from administering propofol to Jackson for sleep. “I knew this problem existed,” Klein said in the interview. “I did my best to prevent it. Whenever I could, I prevented it, but I’m only one man and I have to support my own life and take care of myself.”

Klein disputed the argument by Dr. Conrad Murray’s lawyers that he addicted Jackson to Demerol in the months before his death, saying he used only low doses of the painkiller while repairing Jackson’s collapsed nose and jaw line.

Klein described three instances in which he said he was involved in interventions to prevent Jackson from getting propofol, the surgical anesthetic the coroner ruled killed him, although Klein gave no indication of when the incidents occurred.

In the first instance, Klein said he chartered a plane to Las Vegas when he heard Jackson was getting propofol at a hotel where the singer was staying. Klein claimed he threw out the doctor involved to prevent him from giving Jackson the drug. In another encounter in Hawaii, Klein said he and his nurse slept on the floor of Jackson’s room to prevent him from getting propofol from a plastic surgeon.

Klein claimed he once “saved” Jackson in New York when another doctor administered propofol, combined with another drug. It made Jackson go “running down the street,” Klein said. Klein, interviewed in his Beverly Hills home, said that while it was too upsetting to him to watch much of the trial, he watched enough to believe Murray wanted to “make me look like a demon” and “make me as a scapegoat.”

Klein said he began the slow and painful process of rebuilding some of Jackson’s facial skin in early April after his nose collapsed and after he lost his jaw line.

Be sure to watch the snip of the clip at: http://www.hlntv.com/video/2011/11/06/exclusive-doctor-says-mj-addicted-propofol

Telephone lines are always open to call in at 818-572-8030 long distance charges do apply, join in the discussion or ask questions of John and his guest, Adam Braun.

We encourage all of you to join other posters to discuss all of the cases we cover. Diamond Girl runs the community part of the site and remember discuss the evidence don’t attack other posters. If you read a post that upsets you just scroll past that comment http://community.rosespeaks.com/ I seldom step on the forums that belongs to the members and is in great hands with Diamond Girl and she will be having a robust discussion there that all of you are invited to join

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November 7, 2011
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What is Dr. Murray and his lead defense attorney Edward Chernoff thinking and doing today, waiting for the jury to come back perhaps as early as tomorrow with a verdict.

Here is the jury instructions for you to read through and decide how tough is this going to be for this jury.

Straight Talk with John J Nazarian guests tonight are Criminal Defense attorney Adam Braun, who has been both a prosecutor and now one of the top criminal attorneys in California. Adam Braun can tell us what the Deputy D. A. David Walgren and his team or doing and thinking today about the upcoming week. Braun can also tell us what it is like as a defense lawyer waiting for the verdict to come in and Braun can give us a pretty good guess as to what Dr. Conrad Murray is doing this weekend except for just praying.

Adam Braun will be joined by two retired homicide detectives who were also partners for a time with the L. A. P. D, Robert Jakucs and William Cox. They can share what the detectives are doing this weekend now that months and months of work is complete and it is just a waiting game at this point.

The radio broadcast will be embedded here soon after it airs live at 7 PM PST – 10 PM EST

Adam H. Braun, Esq.
One of the best criminal defense lawyers in California. Braun is the Principal at Law Offices of Adam H. Braun and was a Federal Prosecutor at the United States Attorney’s Office for over 6 years. The Princeton University graduate represented Dr. Khristine Eroshevich during the lead up to the Anna Nicole Smith trial. Braun was the attorney for one of Anthony Pelicanno’s co-defendants. Braun comes from one of the highest profile families of brilliant criminal attorneys.

Robert A. Jakucs – Retired Homicide Detective of L.A.P.D
Robert A. Jakucs is a retired Los Angeles Police Department Detective with over 30-years of investigative experience. During his distinguished career with the L.A.P.D he worked such high-profile assignments as Homicide, Hollywood Vice, SWAT, Robberies, Burglaries, Complex Thefts, and gang-related shootings. He was a member of the Night Stalker Task Force that investigated the serial murderer Richard Ramirez. Robert Jakucs is also a consultant for national television specializing in private and police investigation issues and has appeared on the news shows Nightline, 20/20 and Inside Edition.

William Cox was a Los Angeles Police Detective who retired in 2007 after 32 years
William Cox worked in a variety of assignments including uniformed patrol, CRASH (gang detail) in South-Central and West Los Angeles areas. He also worked homicides for over 20 years and finished his career in Robbery-Homicide Division (RHD) which handles major cases including serial killers, multiple murders, media and high-profile cases, officer-involved shootings, and assaults and murders on police officers. He also worked the Rampart Corruption Task Force for two years. William Cox was also involved or handled several high-profile cases over the years including the Kimes (mother-son grifters who were responsible for 3 murders in LA, NY, and the Bahamas); the Goetz of the West case; the murder of the pregnant mother at LAX; plus several others.

William Cox has appeared on Investigative Discovery channel, 48 Hours, and E-entertainment. He is currently employed by the US State Dept. as a background investigator.

William Cox’s last case he worked on at RHD was a Chinese immigrant student attending USC who had gone to a frat party and had attempted to pull a gun and start shooting students. He was wrestled to the ground by other students who then called police. After a search warrant was served on the suspect’s apartment Cox and three other detectives were sent to NY City to investigate and attempt to identify approximately 20 persons he had targeted to possibly kill. (This incident occurred shortly after the mass murders at West Virginia Tech.) Cox was also working on a murder where a husband set his car and wife on fire on the Golden State Frwy. Cox had also been working (for the past four years) on a double homicide that had occurred in 2002 wherein two victims were killed in their car and their car set on fire. That murder was the story that 48 Hours has done and shown on television in February 2011.

With this combined years of experience this is a must tune in a listen and even ask a question of two as to what we should expect this coming week of the verdict watch for Dr. Conrad Murray.

Telephone lines are always open to call in, join in the discussion or ask questions of John and his guests, Adam Braun, Robert “Bob” Jakucs and William “Bill” Cox at 818-572-8030 long distances charges do apply.

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November 6, 2011
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Note from Ken and Rose Turner Because so many of you have asked here goes:

John J. Nazarian does not own any part of Rose Speaks.com nor will he ever. Rose Speaks.com is a labor of love that came to be because those here saw a grave terrible miscarriage of justice being done to a man none of us knew. Rose Speaks.com does not own any part of Desperate Exes.com or any other site belonging to John J. Nazarian.

Both will have excellent guest I feel sure.

Now that a jury is seated in the Michael Jackson death trial, with opening statements planned for Tuesday, Dr. Drew made it clear on his show last night that HLN will be covering the case every step of the way, gavel-to-gavel. The focus of the trial: how did the “King of Pop” really die? It’s a question the world has been asking for over two years. A Los Angeles County jury will decide whether Conrad is guilty of involuntary manslaughter. He’s accused of administering a fatal dose of a surgical anaesthetic to Jackson. A couple of Dr. Drew’s guests weighed in with their thoughts on the trial.

Judge Greg Mathis, host of “Judge Mathis,” explained how it’s possible for jurors to be impartial:

“The question is whether they can have a preconceived notion that is balanced and fair. Some folks might look at it and say ‘well I’m not sure, I just don’t know.’ And from what I’m hearing on both sides, eveyone has a point, and so I’m just going to wait and see. In fact, that’s what judges have to do, and so perhaps we have some of the juror candidates also that may have been able to have such a consideration.”

Brian Oxman, a close family friend of the Jackson family for over 24 years, said that it was fishy for Michael to announce a 50-date concert tour a couple months before he died:

“Everyone in this family knew full well, when 50 concerts were announced that this was a serious problem. I got a call from Latoya, who said, ‘Brian, he can’t do 50 concerts, they’re going to kill him!’”

What do you think? At the start of the trial, do you think that Jackson’s death was a conspiracy, or are you, like most jurors, going to wait and see what evidence is shown before making a decision?

Straight Talk with John J. Nazarian will kick off his coverage tonight with an in-depth look at the jury and what they might bring into this case or are any of them coming in their mind made up?

Nazarian’s show for September, 26, 2011, with John J. Nazarian co-host Vee Foster, guests Ken and Rose Turner:

Last night show with Nazarian had an error in it and for some reason you can not hear it her or on Straight Talk. I have downloaded the show because the guests were awesome and took like questions like the experts they are and answered them and with great insight. If we can retrieve the show from yesterday we will add an MP3 plugin to our site and load it for your listening pleasure.

Papers dealing with Jury Selection:

Dr. Conrad Murray 30 page Jury Questionnaire (126)
Brief bio and Details about Jury Seated in Dr. Conrad Murray\'s Trial (117)

We encourage all of you to join other posters to discuss all of the cases we cover. Diamond Girl runs the community part of the site and remember discuss the evidence don’t attack other posters. If you read a post that upsets you just scroll past that comment http://community.rosespeaks.com/ I seldom step on the forums that belongs to the members and is in great hands with Diamond Girl and she will be having a robust discussion there that all of you are invited to join

Visit our Download Section and look through and read all of the documents on the cases we cover.

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©Rose Turner
September 26, 2011
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Tonight Mr. Adam Braun will be telling us what to expect in opening statements and what points to look for that both sides have to make during each of their opening statements. Mr. Bruan can give us that rare view of both sides; Adam Braun was a Federal Prosecutor at the United States Attorney’s Office for over 6 years, and since 2007 has been one of the brightest, brilliant, upcoming and truly one of the Super Lawyers in Los Angeles. He will also be able to tell us what the jury profiles tell about what kind of jury each side tried to have seated last Friday, September 24, 2011.

Mr. Braun will be a regular guest on Straight Talk throughout the trial and will be a valuable guest in directing and helping us through each part of the prosecution and defense of the case with a score as to who he sees ahead during the next 3-5 weeks. You might remember Adam Braun from both the Anna Nicole Smith trial and the Anthony Pellicano trial.

Robert Jakucs will give us his insight what the prosecution has to prove during their part of the trial and what to look for with the officers who investigated the case will testify as well as what to expect the defense will do in an attempt to nullify their testimony. As a previous homicide detective for the L.A.P.D, he will be able to give us a look inside the preparations the police have done to aid the D. A. to get this case ready.

Mr. Jakucs will be a guest on Straight Talk throughout the trial as his busy schedule allows and will be a most welcome guest to any show throughout this 3-5 week trial.

Join us tonight on Straight Talk with John J. Nazarian for the kick off of the Dr. Conrad Murray trial in the allegations of involuntary manslaughter trail in the death of mega super star Michael Jackson.

The call in number is 1-818-572-8030 long distance charges to apply or call in using Skype internationally free.

NOTE FROM ROSE: All of Straight Talk with John J. Nazarian coverage of the Michael Jackson trial will be embedded into Rose Speaks within 10 of the live broadcasts ends.

It is my belief that had Anna Nicole Smith lived, life would have been better for some and just awful for one or two. The “Master Plan” would have been in effect and she and her constant companion would have lived happily ever after raising “their child.” Perhaps I think that the U. S. Supreme Court Decision on Anna Nicole Smith Estate (231); U.S. Supreme Court would have maybe been a little more generous had Anna been around. What “The Supremes” thought of this case and the “players” was addressed by Justice Roberts. The comment by Justice Roberts in quoting Charles Dickens novel “Bleak House“ spoke volumes with what he was thinking in reference to this entire matter, again, my opinion.

Someone told me that they thought that they heard someone yell, “Oh my god stop decorating,” we are not sure in what context that was heard, but funny right? All those millions would have been a pain in the ass for someone to have to handle, just terrible. And the lifestyle, Big Houses, Big Pools, Big Lawns, Big Staffs, Big Security, Fancy Cars, First Class travel, Wonderful Fancy Hotels the “Life of Riley.” Who the hell would want such a thing to have to wake up to every morning, knowing that all you had to do was have fun with your kids. And spend money taking “care” of all their little needs each and every one of them. Looking at what money and fame has brought to the life of Anna Nicole Smith, maybe the simple life will be the trick and one of joy and love. Frankly, what the hell, seems like there is not much of a choice at this point…

Visit Desperate Exes.com to read all of John J. Nazarian’s thoughts on all things of the rich and/or famous.

http://desperateexes.com/2011/06/24/supremes-sing-finale-of-anna-nicoles-saga/

NOTE FROM ROSE TURNER: This is the last article this site will do on Anna Nicole Smith, as one of our members said to me, life has moved on and so has all of us.

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©John J. Nazarian
June 26, 2011
Used with the permission of John Nazarian P. I. – writer
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