San Jose Criminal Defense Lawyer Blog

Court Affirms Criminal Defendant Did not Forfeit Right to Counsel

Fri, 18 May 2012 10:37:36 -0800

Otis Lee Rodgers was charged, tried and convicted of assault with a firearm, possession of a firearm by a felon and making criminal threats. The trial court imposed sixteen years in the state penitentiary, which included certain enhancements. During the pre-trial phase of the litigation Rodgers alternated being accepting representation and then waiving the right to counsel. He appeared alone at his arraignment and appeared without a lawyer during certain motions. Although represented by the Public Defender, the trial court eventually allowed Rodgers to represent himself through the last half of the trial. (See People v. Farretta on the right to proceed pro per.)

Immediately following the verdict, Rodgers petitioned the court for a new trial and exerted his right to an attorney for that purpose. Essentially, Rodgers requested more time to seek counsel to file a motion for new trial. The trial judge denied Rodgers request on two separate occasions, finding that Rodgers previously waived his right to counsel, even when advised by the court not to do so. At the time Rodgers claimed that he discovered new evidence and that the prosecutor acted improperly.

The trial court denied further motions by Rodgers to postpone sentencing so that he could prepare a sentencing brief on his own behalf. All motions were denied and the court sentenced Rodgers to sixteen years, which included enhancements . Rodgers had previously admitted two prior felony convictions .

Rodgers appealed claiming that the trial court violated his 6th Amendment Right to Counsel. Rodgers in fact filed for Habeas relief under 28 U.S.C § 2254. Also see Alvarado v. Hill (2001) 252 F.3d 1066. The two questions before the Ninth Circuit were 1) whether the pre-appeal time frame for filing a new motion was a "critical stage" of litigation; 2) whether denying a request for counsel is unconstitutional, where the defendant previously waived such a right.

Of course it is clearly established that the right to counsel is an absolute constitutional right at any critical stage in the criminal process. Critical stage is defined as any "stage of a criminal proceeding where substantial rights of a criminal accused may be affected. See Mempa v. Rhay (1967) 389 U.S. 128, 134. The court found that a post trial, pre-appeal motion for a new trial affected a criminal defendant's substantial rights and thus the Sixth Amendment guarantee to have counsel attaches.

On the second question the court held that defendant's Sixth Amendment right to counsel was violated when the trial court denied his timely request for representation for a new trial motion based on the trial court's notion that once waived, the right to counsel could not be reasserted. The court found that a motion for new trial is the defendant's "last opportunity for an unconstrained review on the merits of the evidence against him...the presence of trained counsel at this stage insures that the most favorable arguments will be presented and the accused interests will be protected." This holding was consistent with the court's previous rulingsas with already establish United States Supreme Court precedent. This San Jose criminal lawyer is happy to see such a just result, which will effect many cases in San Jose and Santa Clara County.

To read the text of Rodgers v. Marshall, click here.

Source: Rodgers v. Marshall (2012) 2012 US App Lexis 9922.

Court Affirms Medical Marijuana Distribution, Transportation...and Sales?

Mon, 14 May 2012 15:21:14 -0800

This article is long in coming and bears strongly on the defense of drug charges. As a San Jose criminal defense lawyer I enjoy informing my readers of new laws, especially ground breaking ones. This past February the Second Appellate District for California came down with a new law clarifying a portion of the Medical Marijuana Program and affirming the distribution and transportation of medical cannabis by members of collectives and cooperatives. In sum the decision held that medical marijuana collectives and cooperatives that comply with certain rules and guidelines may operate as legitimate storefront dispensaries.

However, let me give you a little background before going into this ground breaking case, which will have significant impact in the Bay Area. As most people know, the Compassionate Use Act or CUA provides a defense for qualified patients and caregivers in the possession and use of medical marijuana. The purpose of the law is to guarantee " that seriously ill Californians have the right to obtain and use marijuana for medical purposes." (Cal. Health & Safety Code § 11362.5(b)(1).) Under the Health and Safety Code, a defendant charged with possession or cultivation must be able to defend on the ground that these provisions do not apply because he or she is a qualified patient or a primary caregiver. See Cal. Health and Safety Code §§ 11362.5(b)(1)(B), 11357, 11358, and 11362.5(d).

However, in the murkiness that is the CUA, patients were being arrested and charged with other crimes, such as transportation, cultivation and sales, even when done in cooperation with a cannabis club, collective or co-op. To help cure this problem the California Legislature past section 11362.775 of the Health & Safety Code, which states in part: ""Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions," including cultivation, transportation and non-profit sales."

The Second Appellate District recently came down with its landmark decision, People v. Colvin, 203 Cal.App.4th 1029. Colvin was arrested, charged and convicted of transporting one pound of marijuana from one dispensary to another. The trial court declared that Colvin could not use section 11362.775 as a defense because transportation was "separate and apart" from the cultivation process. The trial court took a more literal interpretation of "to cultivate marijuana." Colvin appealed to the Second District. The State Attorney General made the same argument that the trial court used and added that dispensaries could not act as "store-front" operations.

The appellate court fundamentally disagreed and overturned the trial court and affirmed Colvin's assertion that the statute provided him a defense. People v. Colvin expressly states and affirms that dispensaries are legal; that transporting medical marijuana is legal; and distributing medical marijuana to patients in exchange for money is explicitly legal. As an aside, Colvin seemed to affirm the fact that the defendant was paid $400.00 a month and could seek reimbursement for out-of -pocket expenses. Nevertheless Colvin affirms that Health & Safety Code § 11362.775 provides that patients and caregivers who are members of a collective or cooperative shall not be "subject to state criminal sanctions" under any one of a list of marijuana prohibition sections of Health and Safety Code including transportation and non-profit sales.

One thing not specifically addressed by the court is whether members can be compensated for their time and work. As noted above the court seemed to accept that Colvin was paid $400 per month for his labor and time, but it did not expressly make a holding on the issue.

It is the opinion of this San Jose criminal defense law office that compensation and reimbursement is legal. There is nothing in the statute that expressly affirms or disaffirms this. However, if dispensaries may operate in a retail-style, store front set-up, than it seems to suggest that compensation for labor and time would be legal as well.

Source: People v. Colvin (2012) 203 Cal.App.4th 1029.

Santa Clara County District Attorney To Freeze Man's Assets In Criminal Fraud Scheme

Thu, 10 May 2012 16:40:08 -0800

Batzi Kuburovich, a former co-director of certain cannabis clubs in the South Bay has been charged with fraud ( among other serious crimes) for allegedly swindling investors out of nearly $2 million. Specifically, Kuburovich, also a realtor and businessman, has been arraigned on several counts of embezzlement, fraud, and certain aggravated white-collar crime that includes a sentencing enhancement under California Penal Code section 186.11. This enhancement applies to a person who is convicted, in a single criminal proceeding, of two or more felonies:, where (1) a material element of which is fraud or embezzlement, (2) that collectively involve the taking of more than $ 100,000, (3) that were committed against separate victims, or against the same victim on separate occasions, and (4) that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics

The Santa Clara County District Attorney is alleging that Kuburovich set up "dummies companies," or fake corporations that have no assets or actual business dealings. In a nutshell, Kuburovich enticed local San Jose and South Bay investors to invest hundreds of thousands of dollars in his fictitious company called AZ homes. He told investors that the monies were going to be invested in real estate dealings in Las Vegas and Hawaii. However, Kuburovich pocketed the money into his personal bank accounts, never investing it anywhere. It is further alleged that he purchased a new home in Gilroy with the money. The victims claim a loss of $1.6 million. With fines, penalties and restitution Kuburovich may owe has much as $4 million, give or take.

To ensure that restitution can be paid to the victims (if Kuburovich is convicted of the criminal offenses) prosecutors have sought to preserve the criminal defendant's home and prevent its sale. There was some talk that Kuburovich wanted to transfer title of the home to his daughter. The District Attorney is probably seeking a further injunction of Kuburovich's other assets.

The Penal Code allows for a procedure for preserving and levying on the defendant's assets. Whenever an aggravated white collar crime enhancement, along with sufficient triggering felonies, have been alleged, any asset or property that is in the control of the defendant may be preserved by the Superior Court in order to pay future restitution. (See, Cal. Penal Code § 186.11(e)(1).) The prosecutor may file a petition for a temporary restraining order, preliminary injunction, the appointment of a receiver, or any other protective relief necessary to preserve the property or assets. This is done in criminal court to effectuate the remedies for criminal fraud and embezzlement. For more information of freezing assets in a criminal context see People v. Green (2004) 125 Cal. App. 4th 360.

Kuburovich is also under investigation for possible money laundering in connection to two cannabis clubs he ran out of Gilroy and Morgan Hill. Those clubs were shut down by Morgan Hill after a Federal Raid.

Kuburovich currently works as a consultant for another San Jose marijuana dispensary.

Source: Gilroy Dispatch News Article "Gilroyan arraigned on real estate grand fraud," May 8, 2012 5:00 pm | Updated: 4:40 pm, Tue May 8, 2012

San Jose Gang Leader Sentenced Under the Three Strikes Law for Violent Kidnapping, Attempted Murder

Tue, 08 May 2012 17:36:16 -0800

At only 33 years old, the leader of the San Jose Nuestra Familia, Saragoza Santos Sanchez, was sentenced to a total of 335 years in the California State Penitentiary. Already a three striker, Sanchez, who goes by the nickname of "Capone," was recently convicted on a violent kidnapping, attempted murder, drug charges and other gang related activities and enhancements.

Nuestra Familia, or "Our Family" has its origins going back to the mid or late 1960's in the California State Prison system, particularly in Soledad. It began as a reaction to the more established Mexican prison gang commonly referred to as the Mexican Mafia. The Mexican Mafia began to be mistrusted by certain Latino inmates who accused the Mafia of abusing Northern California Latino farm workers. Nuestra Familia was thus created as a bulwark against the southern based Mafia. The two are now the largest and most violent prison gangs in California that traffic drugs, sex, guns and people. Nuestra Familia now has an intricate hierarchy both in the prisons and outside.

Sanchez was a high ranking leader of Nuestra Familia here in San Jose. He was accused of kidnapping a man who did not pay for drugs (mostly meth) that were put into his care. The man was not only kidnapped but became the victim of several violent crimes, including severe beating. The victim managed to escape from a moving vehicle on Capitol Expressway in south San Jose. It was alleged that the man was to be executed and be made an example of to other drug runners.

Sanchez was already a three striker when he decided to take revenge against his last victim. Just a few years ago he was charged with being a felon in possession with a firearm with gang-enhancements. With three strikes on his record he successfully got two of the prior strikes "struck" for sentencing purposes. This is otherwise called a Romero Motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, as codified in Penal Code § 1385). Section 1385(a) permits a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes Law.

This time there was no chance for a successful Romero Motion, because of the previous successful attempt and the violent nature of this new crime.

Source: Mercury News article, May 4, 2012, by Tracy Kaplan

San Jose Criminal Trial for Assault and Battery Pits Sex Victim Against Former Priest

Thu, 03 May 2012 17:36:06 -0800

Will Lynch, a resident of San Francisco, is accused of severely beating a former Catholic Priest in retribution of sexual assault the Priest committed against Lynch some 30 years ago. The Santa Clara County District Attorney contends that on May 10, 2010, 43-year old Lynch tracked down Rev. Jerold Linder and committed a battery with the likelihood of creating great bodily injury and the further crimes of a terrorist threat and elder abuse, also likely to cause great bodily injury. During the assault Linder suffered some bruising and required two stitches just above his left eye and ear.

The Church removed Linder from the ministry sometime in 1997, admitting that he did in fact had unlawful sexual conduct with minors over several decades. (Linder is barred from criminal prosecution for Lynch's case by the statute of limitations). Lynch, who was seven at the time of the sexual abuse, did settle with the church in the amount of $625,000.

Despite the sexual abuse Lynch suffered at the hands of Linder, prosecutors are moving forward with their felony case against Lynch, arguing that any sexual abuse committed in the past did not warrant the assault some 30 years later. The District Attorney offered a deal of one year county jail with a following three years formal probation. Lynch rejected this and has demanded a jury trial.

His defense is going to be one of the oldest known in the criminal law: self-defense. Further, the defense team will argue that Lynch was suffering from post traumatic stress disorder (PTSD) at the time of the confrontation, due to the physical abuse suffered 30 years earlier by Linder. PTSD is a condition experienced by people who have been through a very traumatic experience and have difficulty coping with ordinary life as a result of that experience. Wartime experience is the most notable type of PTSD.

It is not clear where the defense team will take both the PTSD and self-defense theories.

To run a PTSD defense, typically the defendant must be shown to have been legally insane at the time of the crime due to his PTSD condition. Insanity is a most difficult defense to pursue and rarely successful, especially when based on PTSD. However, an Army veteran, here in San Jose did pursue such a defense in 2009 and was acquitted of armed robbery. The defense argued that he was so traumatized by his war experience in Bosnia that he became legally insane, or at least was so at the time of the crime. See People v. Binkley, (2009) Santa Clara County Superior Court.

Typically, PTSD is used at time of sentencing for mitigating purposes. Penal Code section 1170.9 specifically addresses PTSD as a mitigating circumstance for sentencing purposes; however it is directly applied to veterans.

In Lynch's case it is also unclear how they will address the self-defense issue. The sexual abuse occurred more than 30-years ago, far too removed to claim self-defense. Lynch would have to prove that he reasonably believed that he was in imminent danger of bodily harm, and that immediate force was necessary to defend against the harm. See People v. Banks (1976) 67 Cal.App.3d 379. The defense team has been tight-lipped on this.

However, given the egregious crime Linder committed on Lynch (and other minors), the District Attorney should either dismiss the case or offer some simple misdemeanor such as disturbing the peace. A man cannot take the law into his own hands, but a civil society cannot condemn such a man to any jail or prison.

Source: Mercury News

San Jose Chief Judge of the Federal Court to Retire

Tue, 01 May 2012 17:32:27 -0800

Chief Judge for the Northern District of California has announced his retirement from the Federal Court after only one year as top judge for the Bay Area court. Judge James Ware has had a notable career as a lawyer and judge here in the San Jose and greater San Francisco Bay Area. Ware was nominated to the Federal Bench by then President George H.W. Bush in 1990, where he has served until being elevated to Chief Judge upon the retirement of Judge Vaughn Walker in late 2010.

Judge Ware began his career as a Second Lieutenant in the United States Army Reserve, eventually reaching the rank of Captain in the Military Police. Ware graduated from Santa Clara University Law School and was in private practice in Palo Alto, California from 1972 to 1988. He took the bench as a Superior Court judge for Santa Clara County, where he presided over hundreds of cases, including criminal matters, such as domestic violence, drug matters and violent crimes.

Only two years later Judge Ware was elevated to the Federal Bench for the Northern District of California.

As a federal judge, Ware has presided over some notable cases, such as Facebook, Inc. v. Power Ventures, Inc. Judge Ware stirred controversy when he upheld his predecessor's decision to in overturning California's Proposition 8 initiative which banned gay marriage. Further agitating conservative activists, Judge Ware ordered the video of the Prop 8 trial released, after the California Supreme Court sealed the recording.

The controversy was sparked when Judge Walker revealed that he intended to marry his longtime partner after he overturned the Prop 8 ban on gay marriage. Accusations were made that Walker should have recussed himself from the case because of a conflict of interest; that he stood to benefit from striking down the law. Upon Walker's retirement, Judge Ware upheld the decision, saying "The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen." Judge Ware, concluded that: "merely based on the fact that the presiding judge is engaged in a long-term same-sex relationship, is to place an inordinate burden on minority judges."

The Ninth Circuit Federal Appeals Court, situated in San Francisco, upheld the District Court's decision to strike the law down. The underlying reason for the decision is that there was no "rational basis" to define marriage solely between a man and woman.

Prop 8 had previously been validated by the California State Supreme Court back in May 26, 2009. The majority there explained that "Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term 'marriage,' but not to any other of 'the core set of basic substantive legal rights and attributes traditionally associated with marriage.'" See Strauss v. Horton (2009) 46 Cal.4th 364.

Judge Ware is expected to be succeeded by District Court Judge Claudia Wilken from Oakland. The term of Chief Judge is seven years.

Source: Sfgate, Los Angeles Times

Man Convicted of Sex Crimes Against San Jose Girl Gets Life

Fri, 27 Apr 2012 16:49:16 -0800

Todd Tackwell, originally from Nebraska, has been convicted of the rape of a minor under the age of 14 with the additional related charges of burglary, a violent crime. According to the Mercury News, Tackwell, 37, met the victim in an online chat room sometime in late 2009. The two continued to communicate and befriend each other until early 2010. At this time Tackwell moved from his home state of Nebraska to Alameda County. The victim's parents, divorced, had dual custody of her and she spent time in both Alameda and Santa Clara Counties.

Tackwell moved to California for the purpose of maintaining a sexual relationship with the minor. It is reported by prosecutors that he had no job, family or friends in California. Tackwell continued to see and engaged in unlawful sexual contact with the minor by gaining access to her parent's respective homes late at night and in other various meeting places.

In a nutshell Tackwell was arrested and now convicted of charges of unlawful sexual intercourse with a child under fourteen years of age (California Penal Code § 288), first degree burglary and with findings that Tackwell engaged in ongoing sexual intercourse and conduct with the minor, who he befriended for the purpose of conducting lewd and lascivious acts, and that he committed the lewd and lascivious acts in the course of committing a burglary.

Under certain circumstances a defendant can be committed to a life sentence upon only one strike. Penal Code § 667.61, allows for such a sentence. Specifically, a 25-year to life sentence may be warranted under the statute where the defendant is convicted of rape or rape of a spouse (Penal Code §§ 261(a) and 262(a) respectively) or lewd or lascivious acts on a minor, in violation of subdivision (b) of Section 288. (See Penal Code section 667.1 (a) and (c).) In Tackwell's matter, he may be eligible for parole after 15-years incarceration in the California State Prisons. (Penal Code section 667.61(c).)
For forcible rape a defendant may be eligible for parole after 25 years.

Tackwell had been previoulsy indicted by Federal prosecutors for possession for child pornography in 2010. Suffice it to say, the Feds are less merciful then the California State Court.

For more information on rape and burglary see People v. Estrada (1997) 57 Cal. App. 4th 1270.

Source: Mercury News

San Jose Nurse Challenges Constitutionality of Job Suspension Because of DUI

Wed, 25 Apr 2012 16:38:55 -0800

Anuncio Sulla, a San Jose nurse since 2007, was arrested and eventually convicted of driving under the influence with a blood-alcohol level above .08 (Penal Code section 23152(b)). The short version of the facts are that Mr. Sulla had attended a party, where alcohol was served. Heading home to San Jose, he swerved his car into the center-divide on Highway 101 in San Mateo County. His Blood alcohol was .16%.

As a result the California Nursing Board placed Mr. Sulla on its own probation period of three years. It is true that a professional employee, such as a nurse, may be disciplined (including placed on probation, or having a license suspended or revoked) if that employee's conduct is unfit for him to practice that profession.

In justifying its decision the Board relied on Business and Professions Code section 2762, which provides that a profession, such as a nurse, engages in unprofessional conduct when he consumes alcohol "to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public." Subsection (c) further states that being "convicted of a criminal offense involving the prescription, consumption, or self-administration" of alcohol or other dangerous drug.

Sulla challenged the disciplinary action taken against him and took the matter before the Administrative Law Court in San Francisco, arguing the discipline action denied him due process and was unconstitutional, because the conviction was unrelated to his professional responsibilities. At the hearing evidence was presented that Mr. Sulla had no history of alcohol abuse, was well respected within the nursing community and never drank much when he socialized with his peers. Further, a psychiatrist who examined Sulla, testified "he did not meet the diagnostic criteria for alcohol abuse or dependence, and that his conviction "represents a single, isolated episode of poor judgment." (San Francisco County Super. Ct. No. CPF-11-511124.)

The Administrative Law Judge upheld the disciplinary action on the grounds that such discipline need not be "substantially related to qualifications, functions or duties" of a registered nurse. (See, San Francisco County Super. Ct. No. CPF-11-511124.) The Administrative Law Court did not make a findings on the constitutionality of the Business and Professions Code section 2762, as an administrative body lacks the authority to do so.

Sulla appealed the matter to the Superior Court, with the same arguments noted above, specifically, that his alcohol-related conviction did not bear a substantial relationship to his qualifications to practice nursing. The court found in favor of Sulla, stating that because his conviction is not related to his professional behavior, the Nursing Board acted beyond what section 2762 allows.

The Board appealed to the First District Court of Appeal which overturned the lower court's ruling and reinstated the disciplinary action against Sulla. The higher court stated that the constitutionality of the law has already been addressed by the courts. Further it upheld the Administrative Court's decision on similar grounds.(The court cited the cases of Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1416 and Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 769. These cases upheld disciplinary action against medical doctors for drug and alcohol related crimes unrelated to their professional conduct. As an aside the court did state that there is, nevertheless a "logical relationship between the professional fitness of a registered nurse and the alcohol-related misconduct," such as driving under the influence.

Sulla's attorney said that they will appeal to the California Supreme Court.

Source: SFGate.com

San Jose Jury Deadlocks in Criminal Trial

Mon, 23 Apr 2012 15:12:25 -0800

Richard Delgado was charged with the murder of his 46 year old neighbor Donna Fife. It was alleged that Delgado ran his vehicle over Fife in response to her complaints about his driving and other erratic behavior. However, the jury of eight men and four women could not agree on the defendant's motives and state of mind at the time of the incident. In a ten to two split, the jury hung on whether Delgado was guilty of second degree murder or involuntary manslaughter.

To find that a defendant committed second degree murder a jury must find that at the time of the killing the defendant intended to do an act that is dangerous to human life, "with the knowledge that the act threatens life, and with a 'conscious disregard 'of that threat." See the California Supreme Court case People v. Nieto Benitez (1992) 840 P.2d 969, 975. It is very similar to first degree, as the jury must find that the criminal defendant acted with "malice aforethought," but without the deliberation, premeditation and willfulness of first degree murder. See People v. Jeter (1964) 60 Cal.2d 671, 675.

In such a charge the malice requirement can be express or implied. Malice is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature [human being]." Implied malice is present when no considerable provocation appears, or when the circumstances "attending the killing show an abandoned and malignant heart." The seminal case in California for malice is People v. Mattison (1971) 4 Cal.3d 177, 182. Also see Penal Code section 188.

On the other hand, manslaughter occurs where the defendant committed a crime and by doing so created a circumstance that posed a high degree of risk of death or great bodily injury, and that criminal act did in fact cause the death of another person. Such a charge is a "lesser included" offense to murder where there is sufficient evidence that the criminal defendant lacked malice. See People v. Glen (1991) 229 Cal.App.3d 1461. In a nutshell, manslaughter amounts to criminal negligence; in other words the defendant did not act in a reasonable manner and the act was done in disregard of human life. For more information on criminal negligence as it relates to manslaughter refer to California Criminal Jury Instruction number 580.

In People v. Delgado the jury could not all come to the conclusion that the defendant committed a murder or the lesser included act of manslaughter. Eight members voted for second degree murder and two members voted for involuntary manslaughter. It appears that the two members voting against murder were not persuaded by the evidence showing malice and intent to kill. Because of the deadlock the trial judge had to declare a mistrial and dismissed the case. The District Attorney's Office has indicated that it will in fact retry the case, as is its perogotive under Penal Code section 1141.

Delgado remains in custody for other serious charges including rape.

Source: Mercury News; Judicial Council of California Criminal Jury Instructions

San Jose Safest City While Underfunded Compared to Neighboring Cities

Wed, 18 Apr 2012 11:01:22 -0800

The San Francisco Police Department has more than 2,100 men and women in uniform fighting local criminal activity. The San Francisco Police budget is estimated at approximately $470 million compared to San Jose's budget of $450 million, which includes all fire and emergency services and police. The San Jose police force has an estimated 1,100 men and women in uniform and is set to cut more than 100 of those crime fighting jobs.

By further comparison, the San Francisco Police patrol a total area 47 square miles whereas San Jose has 180 square miles. Despite the number of personnel and large budget, San Francisco had an estimated 2, 629 violent crimes (murder, assault and battery, rape etc) in 2010, compared to San Jose which had an estimated 1,624. Not included in that figure are lower-end offense such as theft, embezzlement and DUIs. Oakland topped the list at more than 6,000 violent crimes. Put in perspective San Francisco had 9.3 violent crimes for every one officer and San Jose 2.5 per officer.

In the end, San Jose is near cutting 100 law enforcement positions, while San Francisco is prepared to add 200 more policemen and women to their rolls. All said, San Jose remains the safest large city in California.

Source: sfappeal.com; San Francisco Examiner

Criminal Conviction of San Jose Man Affirmed in Sixth District

Thu, 12 Apr 2012 17:17:18 -0800

In October of 2001, the slain body of San Jose police officer Jeffrey Fontana was found in a quiet San Jose neighborhood of Alamden Valley. His pistol still in its holster, Fontana was shot through the eye with what was later determined a .45 caliber bullet. DeShawn Campbell, a resident of Santa Clara County, with a criminal history and active warrants at the time of the murder, was found guilty of the crime. Actually, the jury found Campbell guilty of second degree murder and being a felon in possession of a handgun. The jury concluded that Campbell was stopped by officer Fontana at approximately 4:30 a.m. that morning and was afraid of being taken in on the warrants and being sent to prison. To escape he shot the officer once in the head.

Campbell was sentenced to life in prison, plus an additional 40-years. His lawyers appealed the matter to the Sixth District Court of California. Although the trial judge deemed Campbell to suffer from some minor mental defects (not enough to overcome any challenge to his competency) his lawyers argued before the appellate court that the trial judge erred by 1) limiting evidence on Campbell's mental retardation and developmental disabilities, 2) prevented evidence of 3rd party culpability (that another person was responsible for killing Fontana), 3) allowed uncharged and other bad acts into evidence and 4) allowing disparaging, rude and other inappropriate language from the prosecution that prejudiced the defense's case.

The three judge panel refused to overturn the conviction, saying that there was amble evidence for a jury to convict Campbell. The court stated that the defense agreed before trial that it would not put on testimony of "limited actuality," or that Campbell could not have formed the specific intent to cause the murder. On third party culpability the appellate court affirmed the trial judge's decision to limit testimony on the issue because the proposed testimony lacked credibility, was too remote to be plausible and would confuse the jury . As to the prosecution's improper behavior, the court decided that it not prejudice the jury or lead them to think and act in an erroneous manner.

Campbell's lawyers say that will appeal to the California Supreme Court. To read the court's decision click here.

Source: SFGate.com, Mercury News, Sixth District Decision.

San Jose Criminal Suspect Found Guilty of Murder in Round Three

Wed, 11 Apr 2012 18:22:14 -0800

About nineteen months ago Jason Cai was tried for the murder of attorney Xia Zhao. The jury hung in that trial, 11-1 in favor of guilty. To find a criminal defendant guilty of a crime a jury must be unanimous on guilt.

The Santa Clara County District Attorney decided to try the case again; and this time all jurors agreed on Cai's guilt. Cai was accused of lying in wait and murdering Zhao, who represented the mother of Cai's late wife in a $15 million wrongful death lawsuit against Cai. Back in 2006 Cai was put on trial for the death of his wife, who drowned in the couple's Cupertino home swimming pool. He was acquitted of that murder charge, but was sued in civil court by his mother-in -law, who was represented by Zhao.

Twice Cai escaped murder convictions; that is until now. Although based on circumstantial evidence, the District Attorney's theory was financial. His now deceased wife had a life insurance police of $250,000. If Cai's mother-in-law succeeded in her wrongful death case, which has a different and lower standard of proof than in a criminal trial, Cai would never cash out on the policy. Zhao also successfully blocked Cai from inheriting his wife's estate upon her death.

Although there was a surveillance video of the murder, the shooter was never positively identified as Cai. Nevertheless, third time was the charm for the Santa Clara County District Attorney.

Cai, a former software engineer, faces a life sentence in the California State Penitentiary.
Source: Mercury News

San Jose Jury to Decide Young Man's Fate in Criminal Murder Trial

Tue, 10 Apr 2012 16:39:09 -0800

Richard Delgado was 19-years old when he ran over Donna Fife with his vehicle, killing her. He is charged with first degree murder and faces a lifetime in state prison if convicted. Delgado had previous encounters with the Fife family related to his widely known reckless driving habits. He ran into Mrs. Fife late one evening in San Jose in front of neighborhood witnesses. It's reported that Delgado was intoxicated at the time.

According to the Mercury News Delgado's juvenile probation officer testified that she had on several occassions warned the teen that his reckless driving would end up killing someone one day. It is not known what Delgado was on probation for. Another witness told the jury that that Delgado threatened Fife earlier by saying he was coming after her. He backed his vehicle over Fife as she attempted to write down his license plate number.

To prove first degree murder the prosecution must show that the act was deliberate and done with malice-aforethought. Little to no planning is required under California criminal law. So long as he intended to kill and he did so with malice is sufficient.

The jury is currently in deliberation. They could come down on second degree murder, which carries a term of 15-years to life.

Besides the murder charge Delgado is facing more criminal charges including rape and assault with a deadly weapon. Delgado is accused of raping a teenage girl who was intoxicated and unconscious. He is further accused of assaulting correctional officers while in custody pending his murder trial.

Source: Mercury News

Administrator Was Target in Oakland Murders

Thu, 05 Apr 2012 16:43:00 -0800

Oakland Police have now admitted that the intended target at the Oakland school earlier this week was a financial administrator, who has remained unnamed. The suspect, One Goh, is reported to have demanded his tuition back after he left the school in November of 2011. On repeated occasions Goh appeared at the small private university asking for a return of money. Earlier reports indicated that Goh was motivated by harassment he received in the form of teasing from other students. It is still unclear whether the teasing aspect of the story is even true.

Authorities believe that Goh entered the school grounds on Monday looking for the unnamed administrator. However, he found a receptionist, Katleen Ping, who he marched into a classroom and began shooting his .45 caliber pistol. Seven were killed, including Ping, and three other injured. Investigators said Goh brought four magazines with him.

Further reports indicate that Goh was known to have a temper and exhibited violent behavior in the past. It is unclear whether Goh voluntarily left the school or was dismissed.

Defendant Goh now faces life in prison or the death penalty.

Source: Mercury News

Alameda County Charges Man with Seven Counts of Murder

Wed, 04 Apr 2012 18:18:59 -0800

On Monday, April 2, 2012, One Goh, a Korean National living in the Eastbay, brought his .45 caliber pistol onto the campus of Oikas University in Oakland and opened fire. Ten people were shot and the Oakland authorities have indicated seven of them succumbed to their injuries. Details of the event are still coming out; however one witness reported that Goh ordered the victims to line up before he opened fire. Another witness said that Goh held up one teacher by gunpoint in a classroom and stole the vehicle of one of the slain students.

Goh fled the scene, but later surrendered to police at a local Safeway in Alameda, California. The school remained a crime scene well into Monday night as investigators tried to understand what prompted the mass homicide. Some have suggested that Goh was a former student of the University and was teased about his poor English and age.

Goh is being charged with seven counts of murder, with special allegations, including murder in the commission of a robbery and kidnapping. He is further charged with three counts of attempted murder, causing great bodily injury by use of a firearm.

To convict a defendant of murder the District Attorney must show that 1) the defendant committed an act that caused the death of another person and 2) while doing so he was in a state of mind called malice aforethought. Malice aforethought exists when the defendant manifested a "deliberate intention to take away the life" of a fellow human being. (California Penal Code § 188).

Of course there are defenses to murder: self defense, defense of others, accident, heat of passion etc. It would seem that there is no defense here, unless Mr. Goh's attorney intends to raise insanity. He must plead not guilty by reason of insanity at some point to raise the defense. However, such a defense is rarely successful, as the defendant has the burden to show that he had a mental disease at the time of the commission of the crime and because of that disease he could not and did not understand the nature and quality of the offense and that is was morally or legally wrong. Basically, the defense must prove that the defendant was incapable of exercising that degree of criminal intent that would render his homicidal act a crime. (See People v. Leong Fook, 206 Cal. 64.)

Oikas University, located in Oakland, California, specializes in areas of nursing, music and religion and enrolls students from all over the San Francisco Bay Area, including San Jose and Santa Clara County.

Sources: Mercury News, KTVU.com