San Jose Criminal Defense Lawyer Blog

U.S. District Court Jeremy Fogel sentenced former and now disgraced Fry's executive to six years in the Federal penitentiary. Omar Siddiqui was convicted of stealing $65 million from the Bay Area super-store, which he admitted using for his uncontrollable gambling addiction and casino kickbacks. Siddiqui was arrested by Federal agents back in 2008 after the IRS investigated what at first appeared to be abnormalities in Siddiqui's accounting.

At the sentencing hearing a representative of Fry's asked the court not to show leniency because Siddiqui caused financial harm to the company, which also sustained a loss of public trust. Judge Fogel refused to accept Siddiqui's addiction as an excuse when sentencing him to the already agreed to plea deal. Siddiqui had hoped for a term of three years.

The judge also ordered restitution be made to the company in the amount of $65 million, although Fry's claims that Siddiqui stole $87 million. Siddiqui filed for bankruptcy back in July, claiming a total debt of $137 million.

Federal authorities escorted the former executive from the San Jose courthouse and to Federal prison.

Source: San Jose Mercury News

Bay Area and San Jose Lucky stores have become the target of credit card identity theft, the Mercury reports. More than 300 patrons of the popular grocery store have reported unauthorized debits from their credit cards immediately after making purchases from Lucky. The chain store admits that on November 11, 2011 a store employee noticed some sort of tampering with the self-checkout scanning machines. This was followed by complaints of unauthorized activity on customers credit cards. In some cases hundred of dollars were taken from individual accounts.

Save Mart, the parent company of Lucky, announced that its Bay Area stores have been the target of virtual identity theft and that 23 stores have been found with at least one tampered self-checkout machine. It is being reported that the checkout machines contain a "sniffer" device, or on-board computer, that relays a customer's credit card information from the machine onto a new card well outside the store. The thief can then simple take his card with the victim's credit card information on it to an ATM machine and withdraw money.

Save Mart is urging its customers who use the self-checkout machine to check their bank records and if necessary close their accounts. It is not certain if the thefts have ceased or if more people will report being victimized by the scam.

Local Bay Area police say this may be the largest credit card scam in history. However, no suspects have been identified.

Source: San Jose Mercury News

Former Bay Area BART cop Johannes Mehserle is the subject of a civil case of assault dating back to 2008, the San Jose Mercury News reports. Mehserle was convicted of manslaughter for the shooting death of Oscar Grant in January of 2009 . That case generated nationwide reporting, not to mention widespread protests in what community activists claimed was a racially charged murder.
However, before the shooting death of Oscar Grant, a civil suit was filed in San Francisco against Mehserle and four other Bay Area BART police officers in 2008. The Plaintiff claimed that the officers attacked him after he made some disparaging remarks against BART cops. Mehserle is specifically alleged to have tackled the plaintiff in response to the plaintiff's comments.

Mehserle and the other officers have claimed that their actions were in response to threats the plaintiff made to Mehserle. He was in fact arrested for making criminal threats and further charged by the police officers of resisting arrest. The District Attorney's Office dismissed the charges against the plaintiff more than two years ago.

The civil trial was put on hold pending Mehserle's criminal trial in the shooting death of Oscar Grant. The standard that must be proved in a civil trial for battery is very similar to a criminal charge. It must be shown that the defendant (Mehserle and the other BART officers) touched the plaintiff with the intent to harm or offend him, which was not consented to and did cause harm and that such harm would have offended a reasonable person in the same situation.

Mehserle and other named Bay Area officers will likely defend on the grounds that they were making an arrest of the plaintiff and that they used reasonable force in detaining him. Even if the officer is mistaken, an arrestee has a duty not to use force to resist the officer unless that officer is using unreasonable force. In determining what is reasonable force, the jury must determine whether the amount of force used against the plaintiff would have appeared reasonable to a reasonable officer in the same or similar circumstances. What is reasonable depends on the nature and seriousness of the alleged crime and whether the arrestee reasonably appeared to be a danger to the public or pose an immediate threat.

According to the Mercury News, the trial is set to begin sometime after Thanksgiving in the Northern District of California in San Francisco.

Continue reading "Bay Area BART Cop Now Faces Civil Trial" »

The grades of more than 60 past and current students at Santa Clara University have been changed according to an email from President Michael Engh. The email, which was sent to current and former students of the University on November 14, 2011, was issued concurrently with a press release to the public, indicating that the school's record system was hacked into.

According to the Mercury News, a probe into the records database was launched after one student notified school authorities that her grade was changed for the better. The student's identity and year have not been released.

The "hack job" seemingly took place between June 2010 and July 2011. The FBI has reported that a system check going back to 2006 found more than 60 unauthorized changes, some major, such as conversions from an F grade to an A, while other were more "subtle."

In the press release President Engh indicates that a system wide check is being conducted and any student found to be in violation of the University's Code of Ethics will be punished, possibly including expulsion. However, no students have been named and the hacking intrusion is described as "sophisticated."

Current and past students in all three schools of the San Jose area University are being notified of the system check being conducted by school officials and the FBI.

Continue reading "Santa Clara University, Hacked" »

Governor Jerry Brown vetoed legislation last week that would require police to obtain a warrant before searching the personal cell phone of someone just arrested. The Legislature was responding to a recent California Supreme Court case that ruled police across California, including here in Santa Clara County, may search an arrestee's cell phone (including text messages, emails, photos, recent calls, personal records, bank statements, well, the list goes on) if the search is "incident to the arrest."
The idea of searching a suspect incident to his or her arrest has a long constitutional history. This idea has been expanded by the courts through time, however, more recently the U.S. Supreme Court in the case of People v. Gant, held that such a search must be literally within the scope of the arrestees reach. In other words, to ensure the safety of the arresting officer, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area within his or her immediate control.

This past January, the California Supreme Court in the matter of People v. Diaz, once again has expanded on this idea. Specifically the court declared: "The loss of privacy upon arrest extends beyond the arrestee's body to include personal property immediately associated with the person of the arrestee at the time of arrest. This loss of privacy entitles police not only to seize anything of importance they find on the arrestee's body," but also includes cell phones.

Somehow the court believes it justified to search an arrestee's cell phone 90 minutes after the arrest was made. That is exactly what happened in the Diaz case. Mr. Diaz was involved in a sting operation regarding the sale of illicit narcotics. Diaz was arrested and transported to the Sheriff's Station for booking. An hour and a half later police searched the contents of his cell phone.

It is difficult to see how this search was incident to the arrest, or how the cell phone was still within the area of the arrestee's immediate control. It is painfully obvious that the search was far too removed in time and space to qualify as a search incident to an arrest. The phone had been in exclusive police custody for 90 minutes. It is settled that the area within an arrestee's immediate control means the area from within which the arrestee might gain possession of a weapon or destructible evidence. That being the case, the cell phone ceased to be in Mr. Diaz' immediate control once he was taken into custody and police took possession of the phone. It was quite easy for the police to obtain a search warrant before examining the content of the phone.

Unfortunately the U.S. Supreme Court refused to take the case despite the conflict with Gant. Governor Brown should reconsider his stance and stand up for the Fourth Amendment's protections.

Governor Jerry Brown signed legislation that will prohibit law enforcement agencies, including San Jose and other Bay Area police from impounding vehicles if a driver is discovered to be unlicensed during a DUI checkpoint. Previously, many police agencies would impound vehicles if the driver, even sober and not otherwise impaired, did not have a valid driver's license.

It has been alleged that the policy of impounding such vehicles unfairly affected minority groups, if not even targeted at illegal immigrants who routinely drive without valid licenses. Once impounded, sometimes for up to thirty days, the fees to get the car released can be too costly for the owner to pay. In many cases the owner of the vehicle is forced to abandon it to the City.

Under the new law, the car must be released to a legal and readily available driver. If one cannot be found at the scene of the checkpoint, it is to be released immediately at the impound yard once one is found. However, if the driver is deemed under the influence, police may still have the vehicle impounded at the owner's cost. To read the new law, AB 353, click here.

Continue reading "New Rules for San Jose DUI Checkpoints" »

An appellate panel of the Sixth District Appeals court has ruled that a former rape suspect may proceed with his civil suit against the San Jose Police Department, the Mercury News reports. Back in 2008 Michael Kerkeles was accused of raping a mentally disabled woman in March of 2005. As a part of the investigation, Officer Christian of the San Jose Police Department used a fake DNA report showing that Kerkeles semen was collected from the scene of the crime. This was used (unsuccessfully) to illicit a confession from the suspect.

The practice of falsifying police report sand medical documents is not illegal in the investigative stage of a criminal matter. However, the false report in this case was used against Mr. Kerkeles in the prosecution of his criminal matter. At the preliminary hearing, the deputy district attorney assigned to the case called Officer Christian to the stand. He testified as to the authenticity of the crime lab report and that it accurately reflected DNA evidence collected at the crime scene. The crime lab report was the same used to illicit a confession and was completely fabricated.

During trial Mr. Kerkeles' attorneys learned that the report was a fake and as a result the District Attorney drop the charges.

Kerkeles filed suit against the San Jose Police alleging, among others, fraud, wrongful arrest, prosecution and false imprisonment. The law suit was delayed by a Superior Court judge who accepted Officer Christian's later testimony that he forgot the DNA report was falsified. The Appellate Court disagreed and said that both Officer Christian and the District Attorney knew or should have known that the report was a fake.

The San Jose Police Department has since prohibited its investigating officers from using fake reports as a part of their criminal investigations.

Continue reading "San Jose Police Sued for Fake DNA Report" »

The Mercury News has reported that a 17-year old San Jose boy will be tried as an adult in the armed robbery of family living in Campbell. Stanford Hauser was arrested with two other young adults after the group robbed the household of 25 branches of what is described as medicinal marijuana plants. The Mercury reported that Hauser was armed with an AK-47 and allegedly made threats to members of the family.

Hauser is being charged in adult criminal court with armed robbery with an additional gun enhancement. Robbery carriers a prison term sentence of three, six or nine years. With the gun enhancement he could be facing an additional ten years in the state penitentiary. To further complicate matters, Hauser may be facing additional charges of making criminal threats and assault with a deadly weapon.

Although Hauser is a minor at age 17, the Santa Clara County District Attorney's Office has decided to treat and try him as an adult. The factors that go into treating minors as an adult for criminal prosecution vary, but usually include: the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts.

Little is known about Hauser and his prior criminal history, but the nature of the offense alleged is severe. As the Mercury News correctly points out, Hauser is the twelfth minor to be charged as an adult this year.

The RAND Corporation has released a new study that finds that crime rates tend to increase in neighborhoods that have recent marijuana dispensary closures. The study reviewed data related to 638 dispensary closures in Los Angeles; specifically the study reviewed crime rates 10 days before the closure and ten days after the closure. The crime rates in the blocks near to the closed dispensaries were then compared to the neighborhoods where the dispensaries remained open.

The authors of the study report that the crime rates in the areas close to the dispensary were 60% greater than the areas near the dispensaries that remained open. The effect seems to diminish the farther out you go from the effected area.

This research effort was made as a response to many marijuana dispensary closures in Los Angeles and elsewhere. The closures were said to be done in response to rising crime rates in the areas and neighborhoods located near the dispensaries. Santa Clara County officials are on record indicating that crime rates do in fact rise, sometimes exponentially in areas near dispensaries. (See the Examiner online for more details).

Some argue that the public dispensaries create a nuisance and attract and create criminal behavior. However, RAND indicates that that claim has not be scientifically studied and that the RAND report is the" first systematic analysis of the link between medical marijuana dispensaries and crime." Full for article click here.

Here in San Jose, a marijuana dispensary has been under investigation related to a series of crimes including carjacking, kidnaping and the murder of a 60 year woman. A warrant was issued for the co-owner of the dispensary (Juan De La Cerda) alleging him of aiding and abbetting Paul Castillo, who is believed responsible for the crimes. The warrant has since been withdrawan, although San Jose Authorities still want to question De La Cerda. An employee has been arrested for transporting Castillo to Sacramento.

Although wounded, Castillo remains at large. For the full article click here.

The Sheriff's Department in Marin seized more than 500 marijuana plants, the Mercury News reports. The Sheriff indicated that the operators of the marijuana farm diverted water from a neighboring property to grow the plants, that ranged from six to ten feet tall. The growers were seen fleeing the scene but no one was apprehended. It took the department about seven hours to remove all the plants from the vicinity.

Last month Bay Area police discovered more than 2,000 plants in the Marin area and another 500 at the Skywalker Ranch. Police report that they have seized approximately $1 million in marijuana just this last week, with the help of Federal resources.

It is unclear whether anyone has been arrested in these series of raids from last month.

Although not applicable here, the strongest defense for growing and using marijuana is for specifically prescribed medical treatment. The Compassionate Use Law provides that those statutes which prohibit possession and cultivation not apply to patients and caregivers "who possess or cultivate marijuana for the personal medicial purposes of the patient upon the written or oral recommendation or approval of a physican."

The law lists eight specific illnesses but also provides a catchall phrase: "or any illness for which marijuana provides relief." Although the law allows the cultivation of six mature and twelve immature plants, it also provides the patient to provide that amount of cannibis consistent with his or her needs.

The plant operation in Marin county is more likely gang or Mexican cartel related, which typically establish farms in isloated areas with plenty of vegetation on the ground and overhead.

Some have suggested that legalizing marijuana would damage drug cartels as it would cut a great deal of revenue to them (maybe by 50%). This is, however, a controversial topic, but one that should at least be discussed in the near future.

A local stage actor is being called a real life Dr. Jekyll and Mr. Hyde. A San Jose judge has sentenced John Alexander to a century behind bars for more than a dozen bank robberies committed in the Bay Area, three in and around San Jose. The San Francisco examiner reports that there are seven more robbery charges pending in San Mateo and Placer Counties.

Alexander's sentencing judge seems to have given him the maximum under the Three Strikes Law, despite some mitigating factors. The Mercury has reported that some of the robberies were or may have been committed while Alexander was in a drug induced state and other than one robbery from 1979, there were no allegations that he was armed. Family and friends came to the sentencing hearing and testified to Alexander humble and loving side. His 27 year old son testified that his father's conduct was born out of financial. However, as the Examiner reports, Alexander had a dark side, full of rage and insensitivity to others.Although, never armed, Alexander would rob local banks by handing a note to the teller, sometimes threatening the use of a weapon. In the South Bay robberies it is estimated that Alexander netted around $7,287. That includes banks in San Jose, Los Gatos and Moutain View.

The judge did recommend that Alexander be eligible to serve his time at the California Department of Corrections Conservation Camp. This is a minimum security facility where inmates are used as temporary firefighters during fire emergencies. However, being made eligible does not mean he will be accepted into the program. The Department of Corrections must approve and accept Alexander based on its own standards. Alexander will have to be deemed physically and mentally fit and further deemed never to have a committed a violent crime as defined by the California Penal Code.

Law Enforcement agencies in the East Bay have been rocked by a series of scandals involving allegations of threatening witnesses, making false arrests, selling evidence among other claims. However, the Mercury News is reporting that one officer may have colluded to set up one man's recent DUI arrest and conviction.

David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence in 2008. His previous suspicions that he was "set-up" may now have been confirmed and those suspicions involve a conspiracy between his former wife, a too good to be true dinner-date and a now disgraced private investigator and former East Bay police officer.

Dutcher claims that his ex-wife set him up with a flirtatious dinner-date who downed Dutcher with alcohol and promises of an amorous evening before coaxing him into his car. He was soon stopped by a police officer and arrested for having a blood alcohol equivalent of .12%.

It was only after his conviction did Dutcher realize he was being spied on that evening by former PI Christopher Butler. Butler is currently at the center of a grand jury investigation for other previous DUI setups. Dutcher now contends that his ex-wife hired Butler (and his amorous date) in an orchestrated effort to smear his reputation during a child custody battle. Butler has admitted that he tipped off the police officer who arrested Dutcher, but denies any conspiracy. The ex-wife has admitted hiring Butler, but only to make sure their mutual children were not being driven by Dutcher. Dutcher's date is being described as a Las Vegas showgirl and security specialist who has previously worked on sting operations.

Dutcher is now petitioning the court to withdraw his previous plea of guilty. Penal Code section 1018 allows a person to withdraw a plea of guilty and substitute it with a plea of not guilty if good cause can be shown that the plea was not made knowingly and voluntarily and that the defendant did not fully understand all of his or her rights at the time of the guilty plea. In reality, the defendant must show mistake, ignorance, fraud, distress or some other factor that overcame the exercise of free judgment.

Although, Dutcher is a victim (one of several) there is no evidence that he did not understand his rights at the time of his plea and the following consequences. He has admitted to drinking and the subsequent driving. There is nothing to indicate that his guilty plea was anything but knowing and voluntary. Even if there was enough to retract his guilty plea, the case would not be thrown out. He would be able to re-fight the matter with the hope of getting a better deal.

However, Dutcher's case should be dismissed in the interests of justice. The surrounding circumstances have tainted the matter and the participants lack any credibility. Three other and similar cases have been thrown out. It is only fair to dismiss Dutcher's DUI.

Last November, Mike Cerda and his wife, both San Jose residents, invited their friend, Avelino Rodriguez, to stay for the Thanksgiving weekend celebrations. Also living in the home at the time was Cerda's 8 year old step-daughter, whose name remains anonymous. To her parent's distress and outrage, she soon reported that Rodriguez duct taped her mouth and raped the young girl over the weekend. He is being held on charges of oral copulation or sexual penetration of a minor under the age of 14. He is facing 22 years in the state penitentiary, if convicted, and would probably be released sooner.

But that is not the real story. Cerda and his brother Erik are looking at several decades in state penitentiary in the resulting behavior and conduct taken against Rodriguez. The two brothers are being held on charges of torture, mayhem, assault, battery with great bodily injury among numerous others. It is alleged that after the rape, brothers Cerda kidnapped Rodriguez and took him to a remote location in Gilroy where they beat, whipped and burned him with a cigarette. Rodriguez suffered severe bruises, knocked out teeth, burning among other injuries.

There does not seem to be a defense (maybe temporary insanity), but certainly there are mitigating factors. A father enraged to the point of madness because of the vicious attack and violation of a little girl. Maybe the defense could try something along the lines of the "heat of passion" theory. This is a theory that really (if not only) applies to murder cases. In a nutshell this theory holds that when there is a sufficient provocative act that would stir the passion of the defendant to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. (See People v. Moye, 47 Cal. 4th 537 for more information.)

However this theory is used to reduce murder to voluntary manslaughter. (Penal Code section 192(a).) There is no statutory basis to apply such a theory to the charges in this case. In fact, it has been tried, on a limited basis, in the recent past with no success. What the Cerda brothers did was patently wrong (and vicious as well). However, one can sympathize more with their case than with Rodriguez. No one wants to see the father (or stepfather as in this case) get more prison time than the man who violated the innocence of a young child in such a brutal and violent way.

Continue reading "San Jose Father to Get More Prison Time than his Daughter's Rapist?" »

On April 12, 2009, suspected gang member Daniel Pena was involved in a reported shootout with a rival gang. Pena and his friend Alvara Galindo, both alleged Surenos, are said to have started a fight at a bbq attended by members of the Norteno gang. In a confusing set of events, guns were drawn and one man ended up perishing in the fight. Galindo was shot and killed by one of the Nortenos who was subsequently arrested. However, it is Daniel Pena being charged with first degree murder.

The Mercury News is reporting that the Santa Clara County District Attorney has decided to use a relatively unknown theory (except to law students and criminal attorneys) called provocative act murder (PAM). PAM can be alleged "when the perpetrator of a crime, with a conscious disregard for life, intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder ." (People v. Briscoe, 92 Cal. App. 4th 568) Basically, the defendant must have committed an act that provokes a third party to act in a lethal manner.

Usually this doctrine is used when the defendant provokes a police officer who in response accidently kills an innocent bystander or accomplice. Here, the D.A. is arguing that because Pena started the fight, an act that he should have known would have elicited a deadly response, he is responsible for murder.

This theory is similar to a more widely used doctrine of Felony Murder. That rule holds that if there is an unintentional homicide during the commission of an inherently dangerous felony, the suspect of that underlying felony can be charged with murder.However, the different jurisdictions vary as to whether felony murder applies when a co-conspirator is killed. The San Jose D.A. is therefore avoiding felony murder by employing PAM to get to a murder a charge. Both doctrines seek to charge a defendant with first degree murder when he was not the one who actually pulled the trigger

Pena's defense might be that he attempted to retreat thus curing the elements of PAM. Earlier this year Pena's defense attorney tried to do just that. He contended that Pena did intend to start a fight, but when he saw women present he decided to call it off. A judge ruled that the retreat was too late and that Pena had started a chain reaction that directly led to Galindo's death.

Pena is facing 25 years to life in the state penitentiary.

Continue reading "San Jose Prosecutors Get Provocative" »

On June 5, 2011, the body of Maria Esther Orozco was found in a garbage bag in a residential area of Sunnyvale. The suspect in the murder is said to have confessed to murdering Orozco, putting her into the garbage bag and leaving her on Ticonderoga Dr. Just the day before Orozco received 22 phone calls from the now suspect. His name is Feliciano Valencia-Santiago and is rumored to have had some form of relationship with Orozco.

The Mercury has reported that more phone calls were made from Valencia-Santiago's phone between May 2 and June 2 of this year.

Valencia-Santiago's next court date is June 27, 2011. It is unclear if Valencia-Santiago has retained counsel or if the Public Defender will be appointed. He is being charged with one count of murder and may be facing other charges.

Continue reading "San Jose Man Confesses to Murder" »