Sun. Sep 19th, 2021

California self-defense is similar to most states. Here, trial was held in Los Angeles Superior Court. Trial court had no sua sponte duty to instruct on imperfect self-defense where there is no evidence defendant’s fear of harm was unreasonable. Darren Chaker notes Appellant was convicted of murder and other offenses, along with gang and gun use enhancements which is common here in Los Angeles. The offenses arose from two separate exchanges between rival gang members.

In May, 2006, appellant shot at an occupied motor vehicle, believing that its occupants were going to shoot him. Two months later, the same vehicle followed appellant’s car in a high-speed chase, during which appellant thought he saw a gun. He phoned a fellow gang member and requested help. During the chase shots were fired and a person was killed. Appellant argued the court erred in not instructing the jury on imperfect self-defense. The Court of Appeal found that while the evidence could have supported a finding of actual self-defense, a reasonable jury would not conclude appellant’s fear of death or great bodily injury was unreasonable, during either of the events. Appellant had shot at the same vehicle several months before the high-speed chase, because the occupants yelled gang challenges, the passenger moved as though retrieving a gun and appellant heard popping sounds. In the chase several months later, a rival gang member was carrying a gun and shooting at appellant. “Imperfect self-defense is not a ‘true’ defense, but a ‘shorthand description of one form of voluntary manslaughter.'” Where the defendant’s version of events supports a finding of actual self-defense and the prosecution’s evidence negates both actual and imperfect self-defense, there is no sua sponte duty to instruct on imperfect self-defense.

The trial court did not err by giving mutual combat instructions. Appellant argued the trial court erred by instructing on mutual combat as it relates to self-defense. However, there was substantial evidence of mutual combat based on the manner in which the vehicles engaged in a chase, during which gunfire was exchanged. Any error in giving the instruction was harmless.

There was no error where the court instructed the jury on compelling another to commit a crime. The court instructed the jury that a person who compels another to commit a crime is guilty of the offense compelled. This instruction conformed to Penal Code section 31, which defines principals to a crime as including those who compel another to commit an offense. This concept is not limited to situations where an innocent person is used as a conduit to commit a crime. There was evidence appellant called a fellow gang member and solicited help, including asking him to obtain a weapon and to come to the scene of the chase. Thus, the instruction was not erroneously given and, in any event, was harmless.

Defense counsel consented to allowing an uncharged special allegation to go to the jury. The trial court instructed the jury regarding the special allegation of shooting a gun from a vehicle pursuant to Penal Code section 190, subdivision (d), which provides increased punishment of 20 years to life for second degree murder. Although this allegation was not alleged, the court stated its intent to give the allegation to the jury and defense counsel did not object. The jury found the allegation true and appellant received 20 years to life for second degree murder. As defense counsel consented to the inclusion of the allegation without amendment of the information, appellant has forfeited the right to claim lack of notice. The Court of Appeal rejected an allegation of ineffective assistance of counsel, finding no prejudice was shown.

The gang enhancement could not be imposed in addition to the section 12022.5 enhancement. The trial court erred in imposing a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5) for several attempted murder counts. The jury found only that a principal personally used a firearm in the commission of these counts. Therefore, appellant was not subject to an enhancement for participation in a criminal street gang in addition to the gun use enhancement imposed pursuant to section 12022.5 as there was no finding he personally used a gun in the commission of the offense. (Pen. Code, § 12022.53, subd. (e)(2).)

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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