Case Results

Not Guilty

Stabbing

Stabbing with Great Bodily Injury Jury Trial November 2016 NOT GUILTY VERDICT (C1501360)

I represented a young man named Jesse. He was accused of slicing the cheek of his girlfriend’s ex-boyfriend in a fight that occurred at a bar in San Jose, California. Jesse was also initially charged with shooting a second person in the parking lot of the bar. The assault with a deadly weapon and great bodily injury upon the second “victim” was dismissed at the Preliminary Examination as there was no evidence connecting Jesse to the shooting and by all accounts Jesse and his girlfriend, Nina, had driven off prior to the shooting. The judge would not allow evidence of the subsequent shooting not connected to my client into evidence as evidence that there were others with a motive to harm the alleged victims.
There were many inconsistent statements made by the victim, Beltran, and by his brother, Serrano. Both accused Jesse without claiming to have seen him cut Mr. Beltran in the face. Nina lied to the police and said that she was NOT with Jesse at the bar that night. She said that she and another unnamed man, entered the bar that night. The victim’s brother, Mr. Serrano, confronted her and the man she was with that night. She said that her ex-boyfriend, Mr. Beltran, is always causing “drama,” and that he and his friends, surrounded the man she was with and the armed Bouncer, escorted them both out of the club to the parking lot and she left. She told the investigating officer that she drove off and nothing happened.
The investigating officer had seen the cut on her ex-boyfriend’s face at the hospital. He accused her of lying. At the trial, she admitted she lied to protect Jesse. They were escorted by the Bouncer to the parking lot. She and Jesse talked to the Bouncer until he got a call on his walkie talkie and they got into her car and she drove them home.
We located and interviewed the armed Bouncer, whose name was Dante. He confirmed Nina’s statement. Jesse was surrounded by a group, who had been drinking all night, bottle service of Hennessey Brandy with 3 to 5 bottles for a table of 8. Dante testified that he grabbed Jesse and escorted him to the front of the bar. Jesse asked why he was being kicked out when clearly the others were the aggressors. Dante told Jesse that he just “saved” Jesse’s life and that Jesse should be thanking him. Dante said that he talked to Jesse and to Nina, when he received a radio call that, “All hell broke loose” inside the bar.

My investigator also located and interviewed the bartender, Rachael, who confirmed the details of the testimony of the Bouncer, Dante. A major fight had broken out in the bar. There were people everywhere. Chairs were being thrown. The bar owner discharged a mace bomb. Dante was pepper-sprayed in the face by a woman, when he tried to subdue her boyfriend. Everybody headed for the exits to the bar. Mr. Beltran said that is when Jesse returned to the bar and sliced his face, although he did not see the person who cut his face. Mr. Beltran’s brother Mr. Serrano, said that he saw Jesse hanging over the alleged victim but did NOT actually see Jesse cut his brother. The District Attorney only called Mr. Beltran and his brother and the investigating officers. The case was really about their inconsistent statements throughout the jury trial.

I began closing the argument with the lie. THERE IS NO QUESTION that (Nina) lied to protect Jesse. SHE IS A TERRIBLE LIAR. Officer Castillo, questioned Nina; This is the night that, um, Miles got stabbed. Nina immediately said, “Miles did NOT get stabbed. The officer said, “He did get stabbed, I saw him. I went to the hospital. Nina says, “I don’t know. I don’t know. I don’t know anything at all.” Officer Castillo tells her that it is in her best interest to be honest and “Just tell me your side of things because there are two sides to every story.”
Nina says, “Yes, I know that. And, Miles has been claiming a lot of things because he is mad that I got with him [Jesse].
BUT OFFICER CASTILLO DOES NOT LISTEN TO HER SIDE OF THE STORY. He cuts her off and says, “And, uh, what we’re talking about is the night that he got stabbed.” Nina says, “Okay, well, I don’t know anything about that.” Later she says, “Whenever anything happened, I was not there.” Basically, she says, “nothing happened. She went to the club. Mr. Beltran created some drama. They left and nothing happened.
DO ANY OF THE JURY MEMBERS REMEMBER ME ASKING A QUESTION TO ONE OF YOU WHO IS AN ENGINEER? What is the problem when someone sets out to prove what he or she already believes to be true?
Officer Castillo begins with the premise that Beltran was cut in the face and he sets out to prove that Nina and Jesse were both there. He will not listen to what she has to say about the ex-boyfriend, who sent her nasty text messages threatening to kill her and Jesse. Officer Castillo doesn’t listen to her when she is saying that she and Mr. Beltran are going through a custody battle.
When all you know is that Jesse did not cut Mr. Beltran’s face and that she and Jesse left, then, NOTHING HAPPENED.
INDEED, MR. BELTRAN’S FACE WAS CUT FROM HIS EAR TO THE CORNER OF HIS MOUTH. But he was very drunk. He never saw who cut him. Nina and Jesse were there for a short time and had left. And, Mr. Beltran wanted to blame somebody.
The jury returned a NOT GUILTY verdict.

Not Guilty

Gross Vehicular Manslaughter

Gross Vehicular Manslaughter, Jury Trial April 2017

I represented a young client, who was attending Evergreen Valley College, located at the top of the hill on Yerba Buena Avenue in San Jose, California. He was on his way down Yerba Buena Avenue on the first day of school on January 26, 2015 when his car was struck by car driven by another EVC student. The two vehicles skid across the road, jumped a curb, hit a guard rail on the West side of the street. My client’s car came to rest a few feet from the guard rail. The other vehicle hit a large Redwood tree. The back end of that vehicle swung around and hit a 15,000-pound ATT service truck and moved it three feet forward.

When emergency personnel pulled the other driver’s vehicle away from the large Redwood tree they found the body of a young woman crushed between the vehicle and tree.
Witnesses told police that it appeared that the drivers of the vehicles were racing down Yerba Buena Avenue. Both drivers were arrested and charged with felony violation of Gross Vehicular Manslaughter. My client gave a statement. He was not racing. He saw the other vehicle being driven very fast and lost control as it passed by his vehicle, striking him causing them both to skid onto the sidewalk. At the time of their interviews, neither young man knew that the police had found the dead pedestrian.

My client passed a polygraph test administered by one of America’s foremost polygraph experts, Ronald Hilley. My client was NOT racing at the time of the accident or immediately prior to the accident. The District Attorney’s office was provided a video copy of the polygraph and the report and continued the prosecution in spite of the polygraph test results.
I hired Accident Reconstruction Expert, Chris Kauderer, who examined the “skid marks” left by both vehicles and using measurements of the centrifugal tire marks, the weight of the vehicles and the damage of the vehicles and the guard rail, determined that my client was traveling approximately 42 miles per hour in a 40 m.p.h. speed zone at the time that he was struck by the other vehicle. By the same methodology, he determined that the speed of the other vehicle was approximately 72 m.p.h. at the time that the vehicle lost control and began the long skid, followed by first striking the guard rail, then hitting the redwood tree and moving the ATT Service Truck three feet and coming to rest. The DA’s accident reconstruction agreed with the calculations of Defense Expert, Chris Kauderer.

We were able to keep out the statement of witnesses that the drivers of both vehicles were racing as speculation and beyond lay witness’ qualifications to testify and prejudicial to my client. Although, the District Attorney tried to argue that the two drivers were racing, her argument was not supported by any admissible evidence. The jury found my client NOT GUILTY.

Dismissed at Preliminary Examination

22 Felony Fraud Counts

Steve Nakano employed a Forensic Accountant in successfully defending a couple charged with Elder Fraud. Not only were the criminal charges dismissed before trial, but Nakano successfully defended Patricia and Wendell in the Civil Court trial and won!

Dismissed

Burglary

Judge wipes out wrongful conviction for Foley

Kenneth Wayne Foley’s long road to vindication and justice ended in court Thursday when a wrongful burglary conviction that had cost him more than 11 years in prison was erased with the help of prosecutors and steadfast defense attorneys.

In a hearing that took less than a minute, Judge Ray Cunningham vacated the 1995 convictions Foley stood beside attorneys who crusaded for his release – his original trial attorney Steve Nakano and Linda Starr, of the Northern California Innocence Project – and prosecutor David Angel, who re-investigated the facts and determined Foley was innocent.

“Mr. Foley, you are discharged of this matter,” Cunningham said. “Good luck to you.”

With that, Foley, 38, walked out the court doors, no longer haunted by the conviction.

Asked what he thought the moment Cunningham wiped the conviction off the books, Foley replied: “That it’s finally over. I’ve been so long with it, with the hopeless feeling when you’re inside (prison) … I got my fresh start and I’ll be OK.”

Foley, who was released from prison in September, has been splitting his time between the South Bay and Manteca, where he’s been living with one of his sisters. He currently is a truck driver, but said he hopes to go to college, perhaps to major in business administration.

The re-examination of Foley’s case came in the aftermath of the Mercury News series, “Tainted Trials, Stolen Justice,” which examined questionable conduct by prosecutors, defense attorneys, and judges that led to wrongful convictions.

In 1995, Foley was accused of burglarizing a truck parked at a lot in Campbell.

It started when Mashelle Bullington let a man she only knew as “Luke” use her Pontiac Firebird while trolling for recyclables. Bullington accompanied him but said she fell asleep.

When she awoke, they were at a parking lot in an industrial area of Campbell, and Luke was breaking into a truck owned by Robert Buck, according to Bullington.

Buck, who was inside an office, was awakened by a noise and looked outside a window to see a man rummaging in his truck. He grabbed a .22-caliber revolver, went outside and confronted the burglar.

At that point, Buck would tell authorities he believed Bullington was pointing a gun at him – an allegation she denied. Her account was confirmed by the district attorney’s investigation years later.

Buck let the pair go and reported the incident to police, providing them with the Pontiac’s license plate number.

Police traced the plate to Bullington. Later that day, Foley would borrow the Pontiac and get a citation for making an illegal turn.

Officers learned that Foley had a prior record for burglary. They provided separate photo lineups of Bullington and Foley for Buck, who picked them both out as pair he confronted.

An investigator hired by Nakano eventually identified Luke Gaumond as the actual burglar who was with Bullington.

Despite the possibility, he could be charged with robbery or burglary, Gaumond testified he broke into the truck – not Foley. Gaumond, who was never charged, also said Bullington was not armed.

But Deputy District Attorney Charles Slone went ahead with the prosecution of Foley and a jury returned a verdict of guilty. Foley was sentenced to 25 years to life.

During the trial Slone said he was “physically sickened” by the lies told by the defense and that a “fraud is being perpetrated” on the jury to save Foley from a third strike and a long sentence. The judge found Slone had crossed the line into misconduct at times during final arguments but it did not stop the conviction.

As years passed, a persistent Gaumond contacted Nakano asking what could be done to free Foley. After the publication of the Mercury News series, Nakano called then-Chief Assistant District Attorney Karyn Sinunu, who then assigned Angel to re-examine the case.

Angel’s work cast doubt on the conviction, leading then-District Attorney George Kennedy and Judge James Emerson to write the state Department of Corrections, recommending that Foley be resentenced.

Foley, who by then had been in four state prisons, was released late last year, pending the resentencing. Instead prosecutors dropped the charges at the urging of the Northern California Innocence Project, which filed a writ of habeas corpus asking Cunningham to vacate the conviction because of new evidence.

In court documents, Angel said Buck now acknowledges Bullington did not threaten him with a gun. A person who spoke to Buck shortly after the incident said Buck told him she had “pointed her finger” at Buck.

However, the district attorney’s office said it cannot confirm defense assertions that Slone concealed evidence that would have helped establish Foley’s evidence.

“Mr. Foley spent a long time in prison,” Angel said, “but there is hope and satisfaction in that the system eventually was able to bring the truth to light.”

Gaumond expressed relief Foley is finally clear of the charges.

“I’ve been saying since Day One: It wasn’t Kenny,” Gaumond said.

After the hearing, Foley admitted he still harbors anger over the wrongful conviction, but he is also grateful the district attorney’s office reopened the case.

“This district attorney’s office is pretty honorable and noble because I’m sure a lot of offices around the country would probably sweep this under the rug,” Foley said.

Foley has received congratulations from friends in prison, and also some advice.

“They all just tell me to be good and don’t come back,” he said. “It’s a worthless existence in there.”

Source: https://www.mercurynews.com/ci_5607059

Life Sentence Overturned

Armed Robbery

The Defendant, Kenneth Foley, was wrongfully convicted of Armed Robbery in a 3 strikes case. He served 11 years and 10 months of a life sentence.  All of his appeals had been exhausted when Steve Nakano wrote the District Attorney’s Office to ask that the case be re-investigated. With assistance from the Northern California Innocence Project and Special Assistant District Attorney David Angel, Foley’s conviction was reversed. The conviction of Co-defendant Michelle Bullington was also reversed as a result of the re-investigation. Wrongful Life Sentence Overturned.

Dismissal

Gang-Related Assault

Gang-related Assault Dismissed after Preliminary Examination C1110660

Steve Nakano has successfully defended a client charged with Gang Related Assault by proving at Preliminary Examination that the Defendant was acting in Self Defense and that the alleged victims had actually assaulted his client.

I represented a client accused of assaulting two young men with his vehicle when in actuality, it was the two men who were attacking my client. My client had been “partying” with some friends. The friends left the party and got into an argument and engaged in a fight with Norteno gang members. The Norteno gang got “back up” and were looking for the group that had beaten them up. My client was driving his vehicle when his car was hit by a brick. My client stopped his vehicle and was immediately assaulted by several members of the Norteno gang, who opened both of his car doors and beat him and threw rocks at him and at his vehicle. My client had the good sense to put his vehicle in reverse and used the open car doors to knock his attackers out of his car. Then he put the car into drive and escaped uncertain harm.

Police were called to the scene and the slightly injured boys gave a description of the vehicle and partial vehicle license plate. The police found my client several miles away. My investigator canvased the neighborhood (near to the San Jose DMV Office) and located several witnesses to the assault. One witness said that his neighbors were always causing trouble. They were throwing bricks at passing cars. So, he went and moved his vehicle from where it was parked around the corner to another street. That is when he witnessed his neighbors throw a brick and hit my client’s vehicle. He thought that his neighbors were going to kill the driver of the vehicle, when he saw the car drive in reverse and knock the assailants to the ground. Then the driver managed to drive off. The police had questioned several of the neighbors, including him. But, he did NOT want to anger his neighbors. There were other witnesses located who confirmed this witness’s account. But, they would not come forward.

I asked my investigator to bring the witness to court and sit with him while the young gang member witnesses testified. At some point the DA came out and asked my witness why he was here. He told her that he was there to testify against the young men who had testified before him, whom he recognized as his neighbors. The DA (who shall remain nameless) told him that she did NOT NEED him and that he could go home. It was a good thing that my investigator was sitting there with him and told the DA that he was NOT her witness and that I had subpoenaed him to the preliminary examination. The witness was really offended by the DA not wanting to hear the truth about the case. I called him to testify at the preliminary examination. I have never had a better witness testify in a case. He was very articulate. He was also angry with the DA for telling him to go home when she thought that his testimony would not help her case. And, he said so. It should be known that very few attorneys call witnesses at the preliminary examination. They do NOT want the DA to know what their testimony will be a jury trial. However, I believe that only guarantees that the case goes to a jury trial before the truth is known. That creates a very expensive and stressful situation for my client.

After the truth became known the DA submitted the case and the judge dismissed the charges against my client, who later graduated from San Jose State University and whom I later hired as my office manager until he was hired by the State of California.

Dismissed

Drug Crime

Steve Nakano is perhaps best known for defending clients on Drug Possession and Drug Sales Cases. He recently got the District Attorney to dismiss charges against a client where police illegally detained and searched a client’s home without a search warrant. He was able to prove that the police were lying about the length of the detention and the illegal search by obtaining the police communications records.

Dismissed

Burglary/Theft

In a case in which my client was charged with having stolen a prototype instrument made by Kwiklok Corporation, I called the actual thief as a witness to a preliminary examination hearing under the pretense that I needed him to testify as a friend of my client and because he had the cleaning contract with Kwiklok and had access to the building at night. I told him that I needed to establish how secure the building was at night and that he needed a passkey at multiple places within the complex. Once I established how difficult it would be for anybody to gain access to the building unless they had a passkey and access code. I asked how he knew my client and how my client had done some work for him on his car, which was a mustard-colored Datsun (Nissan) 280 Z and that he could not afford to pay my client and so he gave my client the prototype instrument in payment for the work my client had done.

Strike Conviction

DUI

DUI With Serious Injuries C1918797

On August 11, 2019, my client and her friend went to dinner at Aqui Restaurant. They had several “Industrial Swirls” with dinner. My client’s friend drove to the restaurant. When they were walking back to the car, the friend got sick and threw up all over the car. My client put her in the back seat of the car and offered to drive. She first drove to Walmart to buy some paper towels to clean up the car. Walmart was closed. So my client drove to her own home, where she attempted to clean up the interior of her friend’s car.

My client’s mother suggested that they just stay at their house for the night, but my client was focused on getting her friend home. On the way to the friend’s home, my client lost control of the vehicle that rolled over four times. My client awakened in the hospital and was told that her friend, who had been asleep in the back seat of the car and not wearing a seatbelt, was seriously injured. The friend broke her femur and her pelvis and was restricted to a wheelchair for several months.

I interviewed my client just 3 days after the accident. The trauma of the accident and her friend’s injury was still fresh. She came to her appointment with a friend. She wore a cap pulled down around her ears hiding much of her face. I remember telling her to take off that cap because it was hiding her beautiful face. She tearfully told me what had happened 3 nights earlier. She visited her friend in the hospital every day. She told me the events of the fateful night. She said that she didn’t drink very often. Yet, on that day, she had 3 Industrial Swirls. They each did. Her friend was sick so she offered to drive her home.

I told my client that I wanted her to consider entering a live-in treatment program for alcohol and drugs. She said that she didn’t do drugs. In fact, she rarely drank. She admitted that she smoked marijuana regularly. She didn’t consider herself an alcoholic or an addict. I told her that the most eloquent way to say that she will never drink and drive again is to enter a treatment program. And, I told her of a previous client of mine, who (like her) rarely drank but who was driving down First Street along the light rail when he ran a red light and killed a 19-year-old girl who was in the passenger seat of a Honda making a left turn in front of him. He cried for the first 3 weeks of the recovery program and for the first 3 counseling sessions.

I refer to about 80% of my clients to counseling and to residential treatment. She nodded her understanding but I could tell she was struggling over whether she was an addict or alcoholic. I told her that I wrote something years earlier that I called, “Zen Question Zen Answer.” And, I recited it to her. She listened deeply. She asked for a copy of it. One of the Zen Questions is: “How do you know if you’re an addict?” The answer is: If you are impatient and procrastinate at the same time. These two character defects should not coexist. If they coexist in you, chances are you are an addict.” I told her that I would like her to go to an NA meeting that night and to introduce herself as a newcomer. She said she would.

I met with my client and with her parents the next day. And we had another 2-hour office appointment. They hired me to represent their daughter. My client went to her first Narcotics Anonymous meeting the night before. It was a “men’s meeting.” She introduced herself as a newcomer. The secretary of the meeting called her to the podium to speak. She tearfully told her story. A man approached her at the end of the meeting and said that he knew a woman, who might be a great sponsor for my client and gave her the phone number. She had already met the person who would become her sponsor and was planning to attend a women’s group meeting later that night.

When next I met my client, she was living in Support Systems Residential Recovery Program. She had contacted a private therapist whom I recommend, Ken Deaver. He would go to the program for at least the first month that she is in the program. Then she would go to his office for counseling after the first month. My client told me that she attended a women’s group Narcotics Anonymous meeting on the day her parents hired me. She introduced herself as a newcomer. And, again she was called to the podium to tell her story. Again, through tears, she told her story. She read “Zen Question Zen Answer” to the women at the meeting. My client said that at the end of the meeting she was surrounded and engulfed by so many women wanting copies of Zen Question Zen Answer and taking pictures of her copy with their cell phones.

Her story had a profound impact on me. I wrote Zen Question Zen Answer after a two-year meditation of “Joy.” I have recited it and shared it over the years with close friends. I had even recited it as a presentation to AA and NA health providers and once at the Palo Alto Buddhist Temple. My client was asking for copies for her to “give away” to her newly found friends.

My client continued to visit her friend in the hospital and at her friend’s home. There were many emotions that she and her friend experienced. But, slowly her friend got better. My client was there when her friend stood for the first time, and when she took her first few steps. And finally, she was there when her friend was able to let go of her crutch and run and dance! Her friend video recorded all of her progress with my client by her side.

Needless to say, my client did incredibly well in the residential treatment program and in the sober living portion of the program. Living with six other women in a home had its challenges. They all became her sisters. My client also benefitted from private individual counseling with Ken Deaver. Mr. Deaver wrote an in-depth psychological history and evaluation exposing her family and personal struggles, that may have led to her marijuana use, her drinking, and her isolation. My client’s sponsor wrote a very supportive letter as did her academic advisor. My client had taken a leave of absence from San Jose State University. My client wrote a deeply insightful letter to the judge and to probation.

When it came time to discuss settlement of the case, the deputy district attorney said that my client had already done everything that anyone could have asked her to do in mitigation and in her own defense. The judge is aware that he can give her credit for the time that she was in residential treatment and is considering alternatives to incarceration like electronic monitoring.

My client is happier than she has been in a long time. She has a deeper understanding and connection with each of her parents. She loves the fellowship of AA and NA. She is widening the circle of her friendships while also maintaining the love and respect of her friend Luz, who was injured in the terrible accident. And, she is back studying at SJSU and working for the City of San Jose.

Dismissed

Misdemeanor Manslaughter

B1685326

On October 22, 2015, my client was driving to work at approximately 6:35 in the morning. It was before sunrise. The street was dimly lit. There were two women walking in a crosswalk. My client was behind a white Toyota Prius driving the speed limit. The driver of the Prius barely missed hitting the two women in the crosswalk. My client never saw the two sisters who stepped in front of his GMC Suburban and hit the second of the two killing her. My client applied his brakes and his vehicle stopped approximately 90 feet later. My client was sober and alert and without any prior convictions.

The driver of the Prius pulled into the shopping center and contacted Mountain View police officers who had stopped there for coffee. She told the police of the accident. The women were wearing dark clothing and nothing reflective. She almost hit them and did not see them as they were crossing in the crosswalk. She said that she thought that the vehicle driving behind her hit one, or both, of the women. We had the driver of the Prius and her husband, who was the passenger at the time interviewed. The husband was never interviewed by the police and was not even listen to in the police report as a witness.

There was a video surveillance camera at a Chevron gas station that was facing the street. The video was very dark but showed the women crossing in the crosswalk. They walked together to a small island in the middle of the street. They were nearly hit by the Prius and then walked into the oncoming Suburban driven by my client.

California law requires all drivers to give the right-of-way to pedestrians in a crosswalk. However, the law requires pedestrians to exercise equal care in not stepping into the path of oncoming traffic.

Interestingly, the city of Mountain View almost immediately increased the lighting at that intersection of El Monte Avenue and Marich Way. The City also trimmed all the trees that covered the streetlights along that corridor.

We immediately had the video enhanced by video expert, QB White, owner of Light Assisted Design. He also videoes recorded the crime scene exactly one year after the accident at the same time. He also recreated the accident in 3D animation with models to scale of the Suburban following the Prius. Mr. White incorporated the studies of vehicle headlights turned slightly down and to the right, with two human models to scale coming from left to right.

I hired an accident reconstruction expert, Chris Kauderer, of Kauderer and Associates. Mr. Kauderer is an expert in accident reconstruction including human time responses to danger and determining the speed at the time of the accident and distances required to stop after an accident based upon the speed at the time of the accident. His study concluded that my client did not have time to respond to the pedestrians and was traveling less than the posted speed limit at the time of the collision. He concluded that the collision was an accident rather than criminal negligence.

There were three different deputy district attorneys assigned to this case from the beginning. The Deputy District Attorney assigned to the case at trial was not convinced by the accident reconstruction expert report. She would hire a prosecution expert to testify otherwise.

The medical report of the deceased woman showed that she had methamphetamine in her system. So, I hired a toxicology expert, Randall Baselt, to render an opinion about the level of methamphetamine in the woman’s system. He wrote:

During the resuscitative efforts, 400mL of blood was removed from the thoracic cavity and 2500 mL of blood products as transfused into the patient. A fluoridated central blood specimen was obtained from the decedent at 1015 on 10/23/2015 and as found by National Medical Services to contain 510 ng/mL methamphetamine and 120 ng/mL amphetamine.

A 12/5 mg high therapeutic methamphetamine dose was given orally to a healthy woman would be expected to produce a blood methamphetamine concentration of approximately 15-20 ng/mL during the first 6 hours of administration. If this dose were given by smoking, nasal insufflation or intravenous injection, s would normally be performed by a person abusing the drug, the blood concentration could reach 40-60 ng/mL. The 510 ng/mL level is approximately ten times that concentration, and therefore the dose needed to produce that level would be necessarily much higher than 12/5 mg. Persons arrested for drunk driving under the influence of drugs who had similar blood methamphetamine concentrations exhibited nervousness, rapid speech, confusion, agitation, and irrational or violent behavior. Methamphetamine usage is known to increase risk-taking behavior and impulsiveness.

I consider that the methamphetamine does that would have to have been consumed by Ms. Montalvo to produce her blood concentration of the drug would have significantly impaired her perception and judgment at the time of the accident.

Mr. Baselt was prepared to testify beyond his report that resuscitative efforts such as heart compressions (CPR) would pump more drugs into her bloodstream. However, 400 mL of blood was removed from her thoracic cavity meaning her blood that contained methamphetamine was removed from her body, while 2500 mL of clean donor blood was added to her system in the attempt to keep her alive. The compression would have increased the amount of meth in her system. However, the loss of blood and the replacement of 2500 mL of blood in her system would have served to seriously reduce the level of drug per volume of blood. Therefore, the 510 ng/mL in her system was exceedingly high.

Mr. Kauderer had suggested that the drugs in the victim’s system had to have been a contributing factor in the accident. I thanked him and told him that it was outside the area of his expertise. I had engaged Mr. Baselt and was waiting for his analysis.

I forwarded all the expert reports to the District Attorney handling the case. She dismissed the charges before the jury trial was to begin.

It might have been a very interesting case to have taken to a jury trial. However, it would have been at great expense to my client. There are no guarantees for the outcome of a jury trial. I always work to get a case dismissed before jury trial. A jury trial would have likely cost my client an additional $50,000.

Short Jury Trial to Not Guilty Verdict

Misdemeanor 

Stalking

I represented a gentleman accused of a misdemeanor stalking by the ex-wife of his son. It took a day to pick a jury (May 22, 2018) It took one day for the evidence (May 23, 2018) And, it took a morning to argue the case. The jury returned a Not Guilty verdict before the end of the 3rd day (May 24, 2018).

I would have preferred the DA to dismiss the case without the expense of trial to my client. This case was clearly a precursor to a custody battle between my client’s son and his ex-wife, the mother of his daughter.

My client’s son told me that his ex-wife always “upped the ante” meaning that her claims would always grow over time. She would make more claims that, “you could neither prove nor disprove.” His advice was prophetic. When we started the trial, she had made new and different claims against my client to the District Attorney, who was obligated to inform me of her new claims. The DA was willing to postpone the case for the defense to investigate her claims. She would have made even more claims had we put off the trial.

I asked the jury in my opening statement if they ever knew somebody, a friend or acquaintance, who you knew was lying but you could never prove or disprove what they said because there was never any evidence, or any other witness, who could corroborate or dispute her claims. I made the entire trial about how the jury would have to accept her word without corroborating evidence. It was risky.

She made the mistake of claiming that my client had stalked her even more recently claiming that he follows her to her daughter’s horse riding lesson. She described the silver/gray car that my client drove. Unbeknownst to her, that car was totaled in an accident prior to the date of the newly alleged stalking incident. We called my client’s son and a neighbor, whom we intended to call as a character witness. Both knew that my client had been driving a newer red SUV. She might have known this had she not served a restraining order against my client from picking up her daughter from school.

The jury saw right through the alleged victim’s testimony. They unanimously voted NOT GUILTY and left the courthouse. None were willing to speak with the DA or the alleged victim as they left the courtroom.

The NOT GUILTY verdict had a great impact on the Family Court Judge handling the divorce and child custody. The advantage that she sought in the custody battle turned against her. It may have saved my client’s son many thousands of dollars in the custody battle.

(Not all cases that I handle are serious cases in the overall scheme of things. However, they are the most serious case in my client’s life. Often, I am working with a judge or a prosecutor, who believes that my client “can live with” a minor conviction on their record, whether or not the charge is true. Sometimes, the deciding factor is the prohibitive cost of a jury trial. I would have preferred that the DA dismiss the charge without the expense of trial. Sometimes, you just got to say, “Enough is enough!” Let’s roll the dice and go to trial!).

Property Bond Release

Robbery

C1765033

Two men wearing dark clothing and hoodies, walk into a Walgreen’s Pharmacy and demand the Pharmacist and pharmacy techs hand over cough syrup with codeine. One man has a handgun and takes a cell phone from a customer. He then runs with a much taller second suspect out of the store and into an awaiting getaway car being driven by a third suspect.

The three repeat this at a second Walgreen’s market across the county and are captured soon after. They are each charged with 8 counts of robbery and arming allegations. There were 4 victims at each robbery. The gunman took a plea deal to serve 10 years in state prison. That left the “getaway driver” and my client, neither of whom were armed, facing similar time for their part of the multiple count robberies.

My client was a young black man with no prior convictions. He was with two Vietnamese “wannabe” gang members. This was when it was fashionable to drink a purple concoction of cough syrup and alcohol at parties and raves. But, rather than purchase the main ingredient to this new fashion drink, our clients thought it would be easier to hold up two separate pharmacies for cough syrup held behind the counters.

My client had burned bridges with his mother and his step-father, who were unwilling to help him bail out of jail or with attorney fees. He called upon “an angel” of a woman, who was his ex-girlfriend’s grandmother, Pamela. Pamela put up a property bond for my client’s release.

A word on property bonds: Bail was very high in this matter as with any case alleging 8 counts of robbery. Bail bonds companies charge 8% to 10% of the total bail as a one-year premium on a bond. That means that if a case lasts longer than a year the bond companies charge a second premium for the client’s continued release. Bail for each defendant was about $250,000, which translates to $25,000 to a bail bond company. If someone is willing to post a property bond the cost is around $500. And the remaining $24,500 can be used toward attorney fees, drug program fees, and private counseling fees. It is a little bit of a hassle contacting a Title Insurance Company for a Title Insurance Report called a “Lot Book Guarantee,” which is about $100. And, you need a real estate appraisal by a licensed real estate appraiser. The cost varies between $350 and $500. Each can be delivered within about 3 days.

The Lot Book Guarantee shows what the purchase price of the property was and any second mortgages or liens there might be on the property. The appraisal shows the current value of the property. When you subtract the original purchase price or the amount of money owed on the property from the current value of the property you determine the “equity” of the property. If the equity of the property exceeds 200% of the amount of bail a property owner can sign property as a promise that the client will make all future court appointments.

My client’s “angel” owned a 5 bedroom 3 bathroom home with the requisite equity to post a property bond for my client. My client was released by the court and ordered to participate in a residential treatment program called, Amicus House. He also participated in private individual counseling with my favored therapist, Ken Deaver. Mr. Deaver was formerly a probation office in Monterey County with much experience in the criminal justice system.

My client did well in Amicus House. He did not do great as I hoped he would. But, he did his assignments and graduated the program. He did benefit from the counseling with Ken Deaver. My client and his benefactor (angel) gave me a photo album’s worth of pictures of my client, who was a stand-out football player for Milpitas High School. He was so good, in fact, that he was recruited to Bellermine High School in San Jose, where he played for a year before returning to Milpitas High School.

After high school, he played college football for a year before getting injured and dropping out of college. It was while in college that he began using marijuana with his teammates, all of whom lived a Rastafarian lifestyle. Indeed, when I met my client he had very long dreadlocks. I could not resolve how my client could have mutated into a robbery client. This time it was Mr. Deaver who uncovered that my client’s biological father was killed (murdered) at the high school graduation party of his younger brother, (my client’s uncle) when my client was 3-years old.

My client’s mother remarried when my client was 6-years old. He had a step-brother close in age. But his step-father treated him unkindly, always favoring the step-brother and putting him down except when he excelled in football. My client’s mother never intervened on his behalf related to the inequities in how the boys were treated. My client’s football injury and his subsequent marijuana abuse tore down his relationship with his parents.

Ken Deaver’s therapeutic report was amazing (as always) and was enough to convince a judge to take a risk on my client. The judge suspended 7-years of state prison and granted probation and gave him credit for time served of 78 actual days with good time work time and additional credit for the time he was in residential drug treatment.

On a side note: The co-defendant driver of the “get-away” vehicle was ready to plead no contest to at least 2 of the robberies for a 3-year state prison deal. When his attorney found out that I was hoping for a suspended state prison sentence and a grant of probation, he continued the case to trail my client’s case to wait for the outcome. The co-defendant’s attorney thought his client was less culpable than my client, who actually entered both stores. Both clients were granted probation and the co-defendant’s parents thanked my client and me for the work my client had done that clearly benefitted their son.

My client is fully employed. He is now married and he and his lovely wife have a little girl. He will soon successfully complete probation. He has reconciled with his parents. His guardian angel has maintained contact with me and with my office and “believes in miracles.”

Sentence Reduced

Car Jacking & Auto Theft

C1527425

On December 23, 2015 at approximately 6:15 a.m. a Milpitas police officer observed a 2004 ford van with 2 California license plates on the back. One license plate belonged to a car reported stolen out of Oakland, CA. My client exited the van holding an Arizona ice tea. While the officer was at the back of the van relaying the plate information to the dispatcher, the defendant drove off at a high rate of speed in the police patrol vehicle. “The cop left the door open and the engine running!” The defendant could hear the police radio-tracking the patrol vehicle as he drove it away.

Police followed the tracking signal from the stolen police vehicle, to Old Oakland Road in San Jose. The officer’s shotgun and all other equipment were recovered. My client stopped on Old Oakland road. A lady driving a Toyota Rav 4 stopped behind the police vehicle. My client exited the patrol vehicle and approached the unsuspecting woman. He was saying, “Please, please, please! I need your vehicle.” She thought he was saying, “police, police, police, I need your vehicle!” She got out of her vehicle and the defendant entered her Rav 4. Then she realized that he was not dressed in a police uniform. My client handed the lady her purse (or dropped it out the window) and drove off.

He might have gotten away with the double auto theft and carjacking had he not left the Arizona Ice Tea in the patrol vehicle. Police ran fingerprints and DNA, tracked him down to his residence, and arrested him.

My client’s mother originally hired private counsel from southern California and paid a lot of money. According to my client, he was initially offered 9-years State Prison for an early plea to his case, based upon the car-jacking incident not to mention the stolen patrol vehicle and the van. They found me on AVVO.

When I met my client he weighed close to 300 lbs. He had suffered a mangled leg from a hit and run incident. He was hit by a vehicle in a crosswalk. The emergency medical service saved his leg. But, his leg was crushed in the accident. He underwent nine surgeries in fourteen months and was bedridden so long he had to learn how to walk again. He became dependent upon prescription drugs to relieve the pain and could not afford the prescription drugs when released from the hospital. He spiraled into drug addiction.

My client was willing to enter residential treatment and hire private individual counseling with Mr. Ken Deaver. He struggled with the structure and limitations of communal living in a residential drug program. Sometimes, I find that those who struggle with the program get the most from the experience in the long run. He got a sponsor and took very seriously the 12-step work of Narcotics Anonymous. He chanced to meet a comedian who volunteered at Amicus House, whose name is, Mark Lundholm. Mr. Lundholm is a well-known and celebrated comedian in the Narcotics Anonymous world and on Comedy Central. I remember how excited he was when he met Mark, who gave him his phone number. He learned that although his life had serious consequences, he could handle anything life threw at him with a sense of humor. It was like a light bulb turned on in his head. He became grateful for his life and for the fellowship of Narcotics Anonymous.

He worked hard on his underlying core issues with Ken Deaver. He grew up not knowing his father and was told that he was dead. But, at age 17, his father contacted the family. He was suffering from advanced Alzheimer’s disease and died a few years later. He dealt with the trauma and post-traumatic stress of his debilitating accident. And his world became much brighter. He took the issues that he worked with Ken Deaver back to his home group meetings and learned that he was not the only person who had suffered the same experiences. Others were grateful that he brought these issues upon the group meeting level and they thanked him. That encouraged him to dig deeper. Ken submitted a wonderful report to the judge and to probation.

My client pled no contest to carjacking and two counts of grand theft auto with a 3-year top. (No more than 3-years state prison). My client wrote an incredible letter to the judge. The adult probation report was very supportive of my client despite the seriousness of the case, stating that the client expressed sincere remorse and had embraced his recovery. He received probation and a 9-month county jail sentence with 33-days credit for the time he served before being released to Amicus House. So, he served 3 additional months of county jail. (Rather than the 9-year indicated sentence before he did the work of recovery).

My client continues in recovery. He worked out regularly and lost over 100 lbs. and is in “tip-top” shape. He always has a smile on his face. He met a beautiful young lady whom I have yet to meet. She has a daughter. My client talks about how wonderful it is to have a family. He stays in contact with me and is hoping to file for a record clearance and a certificate of rehabilitation when he completes probation.

My client was working out at a gym very soon after he was released from custody. He called me to tell me a funny story. He had just finished bench pressing some serious weight. He was wearing a tank top and covered in sweat. His face was all red and he was all pumped up when the district attorney who handled his case walked into the gym, took one look at him and turned around and walked straight back out the door! Months later he calls me again. This time he was at Kennedy Airport and dressed for business, when he realized that the same DA was boarding the plane back to San Jose. My client did not know if the DA recognized him the second time when boarding a flight home. “All I’ve ever wanted to do was thank him for giving me a chance and tell him that I’m doing alright!”

Probation Granted

Weapon Offense

C1754093

On New Year’s Eve, my client shouted, “Happy New Year!” and shot a handgun in the air outside a small nightclub/bar. My client, happened to have had prior felony convictions and the police happened to be parked across the street from the establishment at the time of my client’s overly exuberant celebration.

My client’s sister lived in North Carolina and found my name on the internet. I was surprised that my client was very soft-spoken. It was unusual in my experience for a man who had served a prison sentence for a gang-related assault case to be quiet, almost timid. He was agreeable and willing to enter counseling and a residential treatment program.

I asked the judge to release my client to Amicus House Residential Drug and Alcohol Treatment Program. Judge Chatman was already familiar with Amicus House and with the owner/director of the program, Lori Johnson. The private therapist, Ken Deaver, had a relationship with Amicus House, whereby he could meet with my clients at the program until they became eligible for the sober-living portion of the program.

In the first month at Amicus House, the counselors determined that my client was responding to “voices” he was hearing in his head. Amicus House recommended that he remain in the “primary phase” of the program for another month, as did Mr. Deaver. So, I called my client’s sister in North Carolina to tell her that his “treatment” would cost more and that he is reportedly “hearing voices.” She said that she and their family know that he “hears voices.” I thought it odd that she had not informed me of his mental health history when she hired me. She was willing to pay the extra expense to keep him in the primary phase of the program for another month.

Another thing happened while my client was in Amicus House. He was “kicked out” for giving a positive drug screening test. He immediately contacted me and swore that he had not relapsed. He had asked his Narcotics Anonymous Sponsor what he should do. His sponsor told him to continue to stay clean and sober and attend all of the same meetings that he was going to while at the program. That was great advice. I have had many clients relapse while in recovery. Many deny relapsing. But, the owner of the program sent the sample back for re-testing. It came back negative for the presence of drugs. The first test was a false positive. Amicus House re-admitted him into the program and immediately tested him upon re-admission.

The Judge was impressed that the initial test result did not cause my client to use it. By this time, Mr. Deaver had disclosed that the client had suffered a traumatic injury that occurred years prior when he was working aboard his father’s fishing boat and fell into the fish hold while in rough seas. He was flown to the mainland for emergency medical treatment and had suffered depression and schizophrenic ideation (he heard voices) ever since. His mental health status was never identified in the prior felony cases that had sent him to prison.

What happened then was nothing short of miraculous! My client embraced therapy and drug and alcohol recovery. He completed the program and chose to stay beyond the minimum 6-month program. He stayed in counseling.

The judge was looking for a way to grant probation despite my client having a strike prior, which was also a “proposition 8” serious felony prior conviction. Even in 2017, the common belief held by the judges and prosecutors (and even defense attorneys) was that the judge had the authority under California Penal Code Section 1385 to dismiss Strike priors under the case of the People v. Romero (1996) 13 Cal 4th 497. But, the court did not have the authority to dismiss a serious or violent prior alleged pursuant to California Penal Code Section 186.22(b)(1)(c).

Judge Chatman cited the case of People v. Aubry (1998) No. G021616, Fourth District, Division Three, June 25, 1998, which took up the issue of whether Section 667(a) deprives the trial court of discretion to grant probation to a defendant who is otherwise eligible for probation. “We conclude that it does not and reverse.”

I needed to bring a Romero Motion, which I had already planned, but the judge had found the authority that she needed. And, she was predisposed to grant the Romero Motion and to strike the “prop 8 prior” pursuant to; The People v. Aubrey (supra) and California Penal Code Section 1385.

The real miracle came in the form of my client’s letter to probation and to the judge. He wrote that he is grateful and appreciative of his counselors and of his sponsor and then his conscious contact with God. In the last paragraph of his letter he wrote:

“My sponsor told me that, “Willingness is the key that will open all of the doors. He could sense that I was very close to discovering higher power. And, as I got up to step 3 and through meditation, I found and learned to connect with my higher power. I became more appreciative and grateful. Things started to make more sense to me. I became alive. The air smelled beautiful. My surroundings became more vivid. Nature looked and felt wonderful! I felt good as a human being for the first time in a long time. I began to understand the “miracle” that my sponsor was talking about.”

This is the most amazing description of recovery and lifting the “cloud of depression” that I have ever read. All this from a man who barely spoke at all when he first entered counseling and Amicus House!

Judge Chatman granted probation to this improbable client, who has successfully completed probation is newly married and living with a daughter from a previous marriage.