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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!!!!!

Follow Us On Face Book and on Twitter and see who Rose Speaks is following. Be sure and “Like” The Parenting Channel Face Book page for the latest in parenting and grand parenting.

©Rose Turner
October 18, 2012
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

“Hear me live tomorrow at 6pm Pacific Time on my new show Straight Talk with John J Nazarian at http://www.blogtalkradio.com/john-j-nazarian. This will be every Sunday night for one hour and will go to five nights a week shortly after. Some of you will be surprised and most of you will ask what took so long, it will be me unedited and telling it like it is. There will be guests and a few celeb’s of course; it will be my thoughts and opinions of many subjects.”

I am very excited that John is jumping into radio and will bet he will be syndicated in a few months at most. I look forward to his guests and the celebs that will appear, just think who all John knows and who all wants to debate with John.

I have been invited to debate with John Nazarian about the Casey Anthony trial, I believe our judicial system works, Nazarian feels it failed bad in that case. That announcement on his new site of Straight Talk with John J. Nazarian states:

“Sept. 4, 2011 6 PM PDT CASEY ANTHONY LATEST GUEST: ROSE TURNER- John offers insight about the case and debates with Rose of RoseSpeaks.com about the case.. the trial .. and the outcome. Where is Anthony now. Is her life really in danger? How do you feel about the potential she will profit from the case. Could she ever face lesser charges? or is she free and clear. Viewer feedback lines will be open.”

Nazarian’s guest today, his premiere show, is Vee Foster and among other things they will be talking about both Anna Nicole Smith, the 4+ years of cases and Michael Jackson and the upcoming trial of Dr. Conrad Murray. The site says:

“August 21, 2011 Straight Talk with John J. Nazarian Celebrity PI Premiers at 6 PM PDT. GUEST: Ve Foster investigative journalist. Get to know the real John, his thoughts, cases, call in and ask him a question or just say Hi.”

I will be on today’s show briefly, of course promoting the way we cover trials which we believe is different than most sites.

Be sure to tune in today at 6 PM PDT, 7 PM MDT, 8 PM CDT and 9 PM EDT and for the weeks to come. My bet is that Nazarian with the controversy that comes with him, will be an instant hit. Ken and I both are in the category of: “most of you will ask what took so long”.

Be sure and tune in today, it should be fun, entertaining and enlightening.

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 for all documents on the cases we are following.

Follow Us On Face Book and on Twitter and see who Rose Speaks is following.

©Rose Turner
August 21, 2011
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

That is what criminal high profile lawyer Steve Sadow from Atlanta Georgia has done in the last two weeks. He heard of the plight of Raquel Nelson, and although there are rich clients waiting and needing his specialty to keep them out of jail, he announced he was taking the case of convicted mother Raquel Nelson, not just at a reduced rate, but PRO BONO, for free.

From an Atlanta Journal-Constitution story that came out the month after the incident:

When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible.

Three-tenths of a mile walk with three young children to the nearest crosswalk, and three-tenths of a mile walk back to the apartment. Over half a mile walk, wait for a light to get her young children home. Every day the bus stops right across the street from the Somerpoint Apartments, and every day people cross this highway at their peril to get home, tired, and wanting to get home quickly. Who among us can say, we too would do the same thing, who among us can say for sure that we would spend the extra 15 – 30 minute, over a half mile walk to cross at the light?

I used to do the park and ride thing in Seattle, and you are tired when you get back at night, I can say I would probably follow the others as they stopped, looked and then dart to save that time and to save that extra walk.

Things are great unless you are the one that is hit by a drunk hit and run driver. Then there is the thing here in the U. S. of “the letter of the law” and “the spirit of the law”. That gives a District Attorney a wide latitude in what they choose to prosecute and what they choose not to prosecute. We will never know why they decided to charge Raquel Nelson, the mother of the dead child with secondary vehicular homicide, crossing roadway elsewhere than at crosswalk and reckless conduct in the April 10, 2010 incident. Where is the compassion for a mother who will grieve the rest of her life over the tragic death of her four year old son AJ.

Sadow has made short work since taking the Nelson case last week. The Atlanta Journal-Constitution reported that:

Attorney Steve Sadow has filed pleas in Cobb County State Court asking Judge Katherine Tanksley to declare his client not guilty before a scheduled new jury trial Oct. 25.

The judge gave Raquel Lee Nelson of Marietta the option of a new trial after sentencing her July 26 to 40 hours of community service and 12 months’ probation in the death of her child A.J.

A not-guilty verdict would clear her record.

Here are the filings Sadow filed with the Court on August 8, 2011

August 8, 2011 Raquel Nelson Plea Bar Motion and Request for Hering (191)
August 8, 2011 Raquel Nelson Motion to Quash and for Hearing (190)

Let’s hope with the help of the Gentleman from Georgia, Nelson will get the compassion that any parent who loses a child to a drunk hit and run driver deserves.

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 for all documents on the Casey Anthony case we have loaded as well as any of the other cases we are following.

Follow Us On Face Book and on Twitter and see who Rose Speaks is following.

©Rose Turner
August 10, 2011
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

Kapoor claimed that:

“Under my care, [Anna] was not an addict.”

And explained his understanding of Michael Jackson’s case, saying that he thought he should have had a medical team to supervise his pain management:

“Pain is a part of people’s lives. And I assume that Michael Jackson had a lot of issues with pain. From his accidents, and the explosion with his hair, so for many years, it has been documented that he had issues with his pain. And maybe it wasn’t well managed, who knows?”

What do you think? Do you think Dr. Kapoor and Dr. Murray are partially to blame for their clients’ deaths? Or do you think they were just doing their job?

We will be doing regular articles with the documents in this less than 30 day run up to the criminal trial of Conrad Murray.

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 for all documents on the Casey Anthony case we have loaded as well as any of the other cases we are following.

Follow Us On Face Book and on Twitter and see who Rose Speaks is following.

©Rose Turner
August 9, 2011
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

On April 10, she and her three children — Tyler, 9, A.J., 4, and Lauryn, 3 — went shopping because the next day was Nelson’s birthday. They had pizza, went to Wal-Mart and missed a bus, putting them an hour late getting home. Nelson, a student at Kennesaw State University, said she never expected to be out after dark, especially with the children.

When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible. A.J. carried a plastic bag holding a goldfish they’d purchased.

“One girl ran across the street,” Nelson said. “For some odd reason, I guess he saw the girl and decided to run out behind her. I said, ‘Stop, A.J.,’ and he was in the middle of the street so I said keep going. That’s when we all got hit.”

He was charged with ONLY felony hit-and-run and has since served a six-month prison term and must complete four-and-a-half years of probation.

WHAT???? his second hit and run and his third DUI; how did he get this “sweetheart” deal? But it gets worse.

The public has been unsympathetic to both women, especially in the blogosphere.

“Crosswalk or not, it is her responsibility to cross only when traffic is far enough away that she and her children can cross safely,” said an anonymous poster on a WXIA television blog after the April accident.

Raquel Nelson, the mother of AJ was charged and CONVICTED by an ALL white jury of secondary vehicular homicide, crossing roadway elsewhere than at crosswalk and reckless conduct in the April 10, 2010 incident.

“Ms. Nelson has decided to proceed with a retrial,” her new attorney, Steve Sadow, told the Atlanta Journal-Constitution on Wednesday evening, following an email announcing his retainer. “I have taken the case pro bono because her prosecution is morally wrong and unjustified.”

Sadow said he hoped, based upon the national media attention Nelson’s case has drawn and the outpouring of support she’s received, that Morgan, [Cobb County solicitor Barry Morgan], chose not to prosecute a second time.

“There has been a public outcry against this prosecution,” Nelson’s new attorney said. “I sincerely hope that … Morgan does the right thing and dismisses the case before a retrial is necessary.”

In the first trial; The last thing the jury heard from Raquel Nelson’s defense lawyer, before they convicted her, was the tape of her frantic 911 call after her son, A.J., was hit by a car. “1-2-3-4-5-6, doing chest compressions on her son, screaming,” recalls attorney David Savoy. “There was not a dry eye in that court room.”

The jury then decided to convict her of vehicular homicide, jaywalking, and reckless conduct.

“I’ve never understood the power of the blogosphere,” Savoy said, “and now, I’m humbled.”

The next court date is in October.

That brings us to the next question in all of this, what those of us who run blogs that cover Celebrity, but more important HIGH PROFILE TRIALS, what is our role in all of this?

I have heard that a blog I have a lot of respect for is closing because of the backlash of the Anthony trial. I can understand that since I have been attacked and even sent viruses through twitter and emails because we DARED to cover the trial in a none lynch mob mentality. So as we get ready for the Michael Jackson trials I have done some soul searching of do we want to stay open and get the personal attacks and the threats including viruses, or is it easier to walk away. TRUST me the decision to walk away and pursue things I enjoy is a no brainer. But being stubborn, Ken and I have decided to began to gather papers, update the multiple Michael Jackson trials, and get ready for another emotion packed trial. So we will be here, will you?

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 for all documents on the Casey Anthony case we have loaded as well as any of the other cases we are following.

Follow Us On Face Book and on Twitter and see who Rose Speaks is following.

©Rose Turner
August 8, 2011
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.