Video – Attorney Andrew Dósa Discusses Resentencing In The Menendez Brothers Case As Well As Its Application To Drugs Cases In California

Ray Hrdlicka - Presentador - Attorneys.Media

Hi, this is Ray Hrdlicka – Host of Attorneys.Media and today we have Andrew Dósa, a criminal and civil attorney in Alameda County, California…practices all over the Bay Area actually. And today I want to talk to him and get his commentary, his opinion on one of the hot topics that are in the news today. And that is the re-sentencing of the Menendez brothers. Re-sentencing in general may have been around since some of the changes in the 1960’s and 1970’s but I want to get the legal perspective on it. That’s why we have Andrew here today. So, Andrew welcome. And let’s just get right into it. Tell us how… why does re-sentencing occur in the first place?

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Well, thanks for having me on your show today, Ray. I wanted to say that there are societal standards that come into play. Realistically, a lot of the resentencing in California and probably elsewhere in the country is driven by legislation. As legislators contemplate things like the three strikes law in California which is really draconian…causes a great deal of harm… then legislators contemplate a change.

And I’ll just give you one example. There’s a United States Supreme Court decision that ruled that the three strikes law in Texas was not onerous even if the final the third felony conviction was for a gentleman who went into a garage and stole a bicycle. And it was considered a burglary and in California that’s a strike, in Texas apparently it’s also a strike, and the United States Supreme Court ruled that that was not an excessive sentence, even if it was just for the theft of a bicycle out of a garage.

Ray Hrdlicka - Presentador - Attorneys.Media

Well, I can see in terms of a three-strikes issue where resentencing could occur because it… well, in California it used to be $400, more than $400…and then I think they raised it to $900. And so, in a bicycle situation, I can see how the three strikes mandatory…you know, and you’re going away for the rest of your life, would absolutely need to be resentenced. But we’re talking about a different case here… you know when you get the more serious crime. So, you know, that I can see the difference. I’m going to let you continue but I just want to delineate that.

Andrew Dósa - Abogado de Defensa Criminal - Alameda County, CA

Sure. Now one thing that comes into play you always have to remember this…under the law and regarding criminal cases, there are two components of every case. There’s the intent component and then there’s the conduct component. So, obviously if you’re driving down the street and you’re not intending to rear end somebody, which is not a criminal matter, it’s a civil matter. If you’re not intending to harm them, then the penalty is not as severe as if you wanted to harm them, if you had the intent to actually have a particular result occur. The laws are interesting about the idea of intent.

So, if you intend to have a particular course of conduct and there’s a consequence even if you didn’t foresee it, if your intent… if your conduct is intentional there’s a greater consequence to you.

So, if we take this back to the Menendez brothers and you look at things that might impact on a person’s thought pattern or how they approach things. If you contemplated that they had been the victims of vicious abuse by a father and a mother and they’re young men or boys really. Really, it had to start when they were boys. Whether or not you would think it’s appropriate in this case, certainly you’d understand if they wanted to get out from under that. It would take a tremendous amount of courage to resist in some way and it would maybe not necessarily be courage but if they wanted to kill their parents, that’s obviously trying to free themselves from a burden.

That may mean that there’s a layer of thinking. There may be, you know, inappropriate thoughts. And there certainly was the intent to do harm to the parents but they’re fighting against something that was a harm to them. So, if they didn’t respond…that harm would continue. We could be sympathetic to that even if we didn’t feel like their sentence might need to be reduced. But in that situation the courts have an opportunity to evaluate… would it make sense to change that.

Let’s talk about one of the more famous cases about intent. And that was in California anyway…The Dan White killing of Mayor Moscone and Harvey Milk. At that time, his defense team offered a defense that was available at that time. It was called diminished capacity. And what diminished capacity meant was that it wasn’t beyond his ability to understand right or wrong but that there was a psychological component to how he functioned, and depression was part of it.

So, his behavior included the inclination to binge on snacks… right? That was a part of a diminished capacity… his lack of capacity or his mental state. And so, it was known as the Twinkie defense. It wasn’t that he ate Twinkies and that justified his behavior… it was that he ate Twinkies. That was the evidence of him binging on this junk food. And under the law at the time, he had a diminished capacity that was reflected by that. That was evidence of a diminished capacity. So, because he had the lesser intent, then he was allowed to avoid a greater consequence.

A worse crime… say lying in wait… malice of forethought… where you’re lying… you’re hiding in the bushes, and you have the intent to take somebody out when they’re walking past you. You have formulated this idea you have the specific intent you have the desire to harm them, you’ve planned it out and you’re lying in wait. That’s the worst sort of intent that we identify and that’s what’s involved in murder cases or has been involved in murder cases through millennia.

Ray Hrdlicka - Presentador - Attorneys.Media

So, let me ask you this question. Does the reason to get a resentencing hearing… are they like any prosecutorial misconduct or new evidence coming to light? Because in this particular case, I know that the Menendez brothers had obviously two trials. First one… hung jury, second one…they restricted the amount of evidence that came in. That just seems wrong to me on its face from the very beginning. But then you have another legal avenue to take… all those appeals that probably occurred through the 1990’s and the 2000’s. But the fact that those appeals occurred and were denied… does that negate the ability to get resentencing?

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Well, let’s address it a slightly different way. If a prosecutor withholds evidence and it is substantial and of great import, it may show that there was some exculpation… some excuse or evidence of innocence, right? If there was evidence withheld from the prosecutor, there would more likely than not be a re-sentence but more likely than not a new trial. But you could imagine if there was some evidence that was of a lesser import perhaps that would result in a re-sentencing rather than a full retrial. Which seems to be the case with the Menendez brothers’ case. Right yeah.

Two. If the prosecutor’s conduct was so egregious, would it justify giving a defendant a new trial? Would that be a better result than that they would be re-sentenced? Well, if it’s evidence that might lead their defense to have a greater confidence and go to trial and they would believe that a jury would take it into consideration and find for not guilty… well, that would absolutely be of great importance. So, you would expect that the courts would be responsive to that kind of misconduct by a prosecutor.

Ray Hrdlicka - Presentador - Attorneys.Media

Does resentencing occur frequently or, I know, it’s impossible to ask for a percentage but let’s say in the last years, given society’s outlook on things…have you, as an attorney, realized that that’s happening more and more?

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Well, I think it is happening more and more. And let’s look at something else. Let’s look at marijuana laws all right? In the old days, in every state, it was a felony to have a certain amount or to have any of it. And then we got to the point where we thought, in California, if someone had less than an ounce and it was for personal use, it was just an infraction they’d get a ticket. And then we felt that it might not be even serious enough for that and so the police in some jurisdictions would simply just not arrest people… they’d just take it and destroy the evidence, or we would assume they would destroy the evidence.

But if we have changed our laws completely, so that it is not a crime to possess marijuana, or it was that a doctor had prescribed it and it was still a crime despite the prescription of the THC product, there is a tremendous amount of resentencing or in some cases dismissals of cases because now that the laws are changing… why would we not recognize that we just had a draconian approach to something that we didn’t consider as dangerous?

Obviously, there’s a difference between cocaine and methamphetamine and marijuana, right? Usually, the argument against marijuana is…people just get a little lazy, they don’t do much work. Well, that’s a whole lot different than getting meth and going…getting cranked up and going crazy. I think it’s a great deal of physical harm to other people because there are people…are just not in their right minds.

Ray Hrdlicka - Presentador - Attorneys.Media

Is there a period of time after conviction…they start the sentence…they serve the sentence…that is an appropriate time to start bringing up re-sentencing? Is there some…

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

I’m sorry I’m interrupting you. There are some laws that identify a certain period of time before a re-sentencing can be considered. And there is a law in California that talks about youthful offenders. In some situations, a relatively young adult, an 18-year-old or a 19-year-old, and they commit a relatively serious offense…there’s a statute that allowed for a resentencing to be sought by the defendant after that person had been in custody for a certain amount of time.

So, I had a client who we had hoped would be able to be sentenced or resentenced under the youthful offender laws and he committed that crime three days after his 18th birthday. And he’d done that while under the influence of a stronger person in the community. And I don’t remember…that person was involved in the gangs but that it was just someone who’d overcome his very immature 18-year-old and three-day-old mind and he did something really foolish. He was not a serious man. He was not a serious participant. He was the one led into it.

And I’ll use that to segue into another thing which is… another change in the law. And that is in California, we have in some circumstances abolished what’s known as the felony murder rule. Classic scenario… one kid goes in… does a home invasion. He talks someone into being his getaway driver and the kid’s sitting out in the car. He thinks that all that’s going to happen is the first guy’s going to go in and steal a bunch of things and he ends up finding somebody in the house and shoots and kills him.

In the old days, felony murder meant if you had the intent to commit a felony, you would then be swept in under the worst behavior of your co-conspirator, your partner in crime. That’s now changing. And I think I’m sympathetic to understanding why they used to have the rule but realistically, if you had no intent to see something serious happen and you’re out there and you’re a small player in this whole thing, your consequences should not be as serious, I think. So, that would make sense. You can have people resentenced under that scenario.

Ray Hrdlicka - Presentador - Attorneys.Media

So, one final question on the resentencing discussion here. How long does that actually take? I mean you make an application. I would assume, make a motion and I would assume just based on our discussion here, there is a huge number of changes with the drug resentencing issues…with youth obviously aging out issues. So, is it on a case by… well is there a priority…or is it first come first serve?

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Well, I’ll answer that question by giving an example of a case that I handled where my client went to ensayo and I believe, unfortunately, was convicted and had not committed a crime. It was an attempted murder case. And the judge at the sentencing imposed a 32 plus year sentence for my client. Despite the fact that the victim said she never saw a gun in my client’s hand.

And then, there was a resentencing law passed regarding firearm enhancements. And that was my client’s motion for a resentencing under this new law…was advocated for by another attorney. He asked me to contribute, and I wrote a declaration supporting my client, my former client. And the judge in that case determined that the resentencing was appropriate. That he did not have to impose 25 years in addition as an additional enhancement of the sentence for the firearm, but he could choose to pick a three or four year or a 10-year number. And he chose to change the sentence, and it ended up being 32 plus years down to 11.

Ray Hrdlicka - Presentador - Attorneys.Media

Wow. Okay.

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

And to answer the question how long did it take? Well it took several months because the attorney did a very thorough job… reviewed the transcript of the trial also did a substantial amount of work looking at the mental health and the history of my client who has had some serious troubles over his years… not just from conduct and not just from drug use but mental health issues that were apparent from an early time. And part of that may have been linked to the fact that he had a pretty brutal childhood. Harsh, difficult, not very supportive of adults in his life and a father that was in and out of his life and usually went in… not good. It’s a sad thing to say that he might have been safer when his father wasn’t around than when his father wasn’t.

Ray Hrdlicka - Presentador - Attorneys.Media

So, obviously it sounds like, and you’ve just illuminated the fact, that cambios sociales impacts the potential of resentencing… obviously at some point in time on a regular basis. You know what happens today is not…I mean what happened in1970 is not what’s going to be possible in 1990 or 2010 or even today.

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Right. Well, the legislature can change laws and change the point where the law is applicable. The general bias or premise is that a law… well, let’s back up and say the laws can be effective as of the date that they are passed, then the question is do they have a natural impact to what has happened before, and the answer is not always but sometimes.

So, drug laws were like that. The present law has changed to allow for possession of marijuana in California. The premise was why not go back and look at those convictions of all sorts of marijuana. Yeah. A lot of people have felony convictions for possession of weed when they were in high school. And that felony had a dramatic effect on them. Now. We look at marijuana. It’s not anywhere near as dangerous. Obviously, the legislature said we want this to be going back into time, retroactive for all cases in the past right? Makes sense.

Ray Hrdlicka - Presentador - Attorneys.Media

Well, thank you very much for this. We’ll get you back on the air with us….more about legal commentary interviews with Attorneys.Media. Andrew, thank you for very much for appearing with us.

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

Thank you, Ray, I appreciate being here.