San Jose Criminal Defense Lawyer Blog

Milpitas resident, Alex Castro was put on trial in 2009 for the brutal killing of his girlfriend's cocker spaniel and subsequently convicted. Castro, who suffered two other prior violent felonies and other misdemeanors was sentenced to 36 years to life in the California state penitentiary under the Three Strikes Law.

However, the Sixth District Court of Appeals in San Jose overturned the verdict, finding that Castro's lawyer failed to have an expert evaluate evidence proffered by the District Attorney. The jury was shown a letter threatening a prosecution witness in an attempt to dissuade that witness from testifying. The prosecutor alleged that the letter was in Castro's handwriting. Although Castro denied the letter was written by him, the defense did not enlist the assistance of an expert to examine the letter to determine whether the handwriting was in fact Castro's.

In a subsequent trial, that same letter was used against Castro, but an expert testified that the writing was not that of Castro. He was acquitted, based in large part because of the expert's testimony.

The Appellate Court found that had the defense in the first animal cruelty trial consulted a handwriting expert, the jury may have found Castro not guilty. In other words, it is reasonable to conclude that a jury could have found for a not guilty verdict based upon an expert testifying that the letter was not penned by Castro. There were no eyewitnesses to the actual crime.

According to the Mercury News, the Santa Clara County District Attorney's Office will likely re-prosecute.

Source: One Page News; Mercury News

Two suspects robbed a Bank of America in San Jose early yesterday, wielding what looked like a bomb. The men fled the scene in a blue Honda and made for Highway 85, driving at speeds well in excess of the posted limit. The robbing duo crashed their Honda into a Minivan at the intersection of Highways 85 and 87 and took off on foot. A woman in the minivan was injured due to the collision.

One suspect was followed by a San Jose martial arts expert who tackled and subdued the suspect. The second suspect ran into the fields of Gunderson High School, only to be arrested a short time later. The school was in lockdown for several hours.
Highway 85 was closed do the possible existence of a bomb in the suspect vehicle.

Although the crash took place at approximately 11:40 a.m., the Highway was closed till around 5:00 p.m. In the end there was no bomb, after the object was later detonated by the police.

The suspects face felony charges including robbery, assault with a deadly weapon, making terrorists threats, evading and conspiracy.

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.

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" »

Melvin Forte, a man who refused to be represented by a defense lawyer, was convicted of a 1981 rape and murder of a young German immigrant, Innes Sailer. It only took the jury three hours to recommend the death penalty.

Sailer's body was found on Poco way in east San Jose some thirty years ago, having been raped and repeatedly shot. Forte argued that the District Attorney could not link him to the southbay and that he never ventured from San Francisco. For awhile this argument seemed to work, until a witness positively identified Forte as a man she remembered walking in the area of the crime scene. (Refer to page of this Blog for further details.)

The case had been cold for years until the advent of DNA and a new unit in the District Attorney's Office that reopens old cold files. The DA was able to match Forte's DNA, which was the greatest evidence against the defendant.

Forte is already serving a life sentence for the murder of a San Francisco man, David O'Malley. His fiancé, also a victim of Forte, testified at the sentencing phase of the case. This proved to be the breaking point of the jury, who a few hours later decided on death for Forte. Superior Court Judge Linda Condron is set for formally sentence Forte on February 23, 2011. However, given Forte 60 years of age and the extensive legal challenges Forte will employ, he will likely die in prison before the sentence can be executed.

This story is a true lesson of the quandary you can find yourself in by representing yourself. More than two decades ago, Ines Sailer, a 23-year old German immigrant was found dead in a carport in East San Jose, a victim of multiple gunshot wounds. She was living in San Francisco before her untimely death.

However, no suspect was found and any leads led investigators into dead-ends. The case went cold. Nevertheless that cold case took on new life when in 2005, San Jose created its cold case department. CCD is a unit of investigators tasked with reopening cases long ago thought unsolvable. With the advent of DNA evidence such cases could now be re-investigated.

Melvin Forte, a 60 year-old former resident of San Francisco, now serving a life-term for a murder in San Francisco some years back. Investigators, having reopened Sailer's cold case, matched Forte's DNA.

However, the case was not necessarily a slam dunk. There are many issues that competent lawyers and experts use to show that a DNA sample may not be all so accurate. A "match" may mean the source is the criminal defendant. It may also mean that the defendant's DNA profile coincidentally matches the crime scene DNA or that there was an error in collection, interpretation, or contamination.
There are significant scientific issues that surround the introduction of DNA evidence such as errors in collection, inadvertent transfer of DNA, biased interpretation and misleading statistics. Of course, as with most attorneys I digress.

The San Jose District Attorney's Office is prosecuting Forte for the rape and murder of Ines Sailer. Forte refused counsel and is representing himself. His main argument, which appeared to gain steam, was the DA's failure to connect him to the City of San Jose.

Unfortunately for Mr. Forte, untrained in the art of cross examination, a relatively minor witness made a stunning revelation upon Forte's prompting. She positively identified Forte declaring that she saw him at the San Jose apartment complex where Sailor's body was found. Before Forte's questioning, the witness, a former housekeeper who worked at the apartment complex, was vague as to what she remembered. Then, to a stunned jury she blurted out "I remember seeing you!" and "Frequently, in the afternoon, sometimes midday, sometimes early evening." She even said that Forte once told her that he lived in the apartment community.

Prosecutors are seeking the death penalty.

Continue reading "Stunning Revelation in San Jose Murder Trial" »

A 1977 rape and murder of a Santa Clara teenage girl went unsolved for 32-years until DNA evidence linked the man to the crime. Richard Archibeque, originally from Santa Clara, was convicted for the rape and murder of his fellow high school student Mary Quigley decades after the crime was committed.

Police reopened the case and using DNA testing matched Archibeque (who was convicted in 2006 for unrelated rape). Archibeque has been sentenced to a life term after the jury found him guilty of raping and strangling Quigley to death. She was found hanging from a cyclone fence in the War Memorial Park in Santa Clara. She was last seen at a friend's birthday party hours before.

Archibeque has appealed to the Sixth District, claiming the prosecution provided insufficient evidence for a reasonable jury to convict. The court has rejected his argument, saying that the prosecution's case-in-chief was "more than adequate." It is unclear whether Archibeque, through his attorneys will appeal to the California Supreme Court.

Since the 1977 murder and before his 2006 conviction, Archibeque married and had a daughter. He worked as a handyman until his 2006 arrest and conviction for the rape of a 16-year old girl. He spent three years in prison on that case until law enforcement matched his DNA in the 1977 murder.

Continue reading "Sixth District Upholds Murder Conviction for San Jose Man" »

The First District Court of Appeals in San Francisco overruled Governor Arnold Schwarzenegger who denied parole of a man convicted of killing his 20-month baby over twenty years ago. Kuldip Kler, convicted of second degree murder on February 25, 1987, will be eligible for parole because of a clean in-custody record, acts of remorse and acknowledgement of the crime.

Further, in its ruling, the court indicated that the Governor was wrong for basing his denial on the facts of the crime itself and not for the conduct of Kler in the 20 subsequent years.

""The factors relied upon ... are not supported by the record, nor do they lead to the conclusion that (Kler) would be an unreasonable risk of violence if released on parole," the court's opinion states.

Kler was up for parole in 2007, but his release was denied by the Parole Board. However, the Board reversed itself and granted the parole after an appeal. This was followed by Schwarzenegger's denial of Kler's freedom some months later.
The District Court gave several reasons for reversing the Governor:

1. Kler's exemplary behavior while in custody, attendance at counseling meetings and self-help sessions.
2. Kler's acknowledgement of the crime and his guilt. During the trial Kler testified that he was in an epileptic fit when the baby died.
3. Expression of grief and remorse for the child and his behavior.
4. Because of his record while incarcerated and his behavior and conduct, he no longer poses a threat to the community

Governor Schwarzenegger may appeal to the California Supreme Court. The Governor's Office declined to comment.

Effective today, San Jose will no longer have a specialized police force dedicated to fighting violent crime and street gang activity. The announcement comes on the heels of city-wide budget cuts and downsizing. San Jose Police Department's Violent Crime Enforcement Team (VCET) seems to be the latest department to be axed. The Police indicated to reporters that the Team made approximately 1,000 gang arrests annually.

George Beattie, San Jose Police Officers' Association President, told reporters that the "elimination of this unit from the San Jose Police Department will have a devastating impact which cannot be estimated."

The 18 officers of the Violent Crime Enforcement Team will be transferred over to the Metro Unit. Beattie stressed that this will make the city more vulnerable to the estimated 50 gangs and 9,000 validated gang members in San Jose. (Of course, readers of this blog know my take on this: if you happen to live on the wrong side of town, well, that makes you a gang member to the police).

Mayor Chuck Reed's spokesperson, Michelle McGurk issued a press release on Sunday saying the VCET was not being eliminated and called it a "staffing change."

Continue reading "San Jose to Eliminate Its Gang Unit" »

Around 5:00 p.m. on September 11, Gilroy Police arrested four adults and four juveniles on gang related charges. Girloy's Anti-Crime Team arrested Robert Navarro, 21, at 9033 Church St. on a $100,000 warrant for assault with a deadly weapon and on an additional warrant for being under the influence. It is alleged that Navarro physically attacked a man near Safeway on the 900 block of First Street. Witnesses say the victim fell to the ground in front of his wife and two-year old daughter. No word if the injuries are fatal. Police arrested three more men, allegedly from the same local gang: Dominic Casillas, Louie Vallez and Alexander Amezcua. Their charges range from oral copulation of a minor, domestic violence and false imprisonment. Details are not forthcoming.

Police also arrested four juveniles for various crimes, including probation violations, possession of a machete, escaping from a juvenile detention facility and possession of a concealed weapon.

It is alleged that all eight men and boys are members of the Norteno street gang and the Gilroy police say they have put a dent in local criminal gang activity. However, the police have not indicated whether these men are validated gang members. Being Latino and committing a crime does not equal membership in a criminal street gang. Of course, here in San Jose, just living on one side of town automatically makes one a member of a gang. And, wearing a badge automatically makes one a "gang expert." Or so it too often seems.

Continue reading "Gilroy Cracks Down On Street Gangs" »

San Jose Police have released the identities of three victims of homicide over this past weekend. Jasmine Nicole Costa, only 28 years old, was found shot to death at her home in San Jose. Police have picked up a suspect, reported to be 25 years old, who is to be arraigned on murder charges this week. Ms. Costa was the 16th homicide in San Jose for the year.

The city's 17th and 18th homicide victims were identified as two San Jose residents: Alex J. Rodriguez, 27, and Phillip C. Ayala, 26. The two were shot down by a single gunman at 10:42 p.m. Saturday in a parking lot in the 300 block of San Antonio Court. It is alleged that the victims were involved in gang conflict when they were killed. Another woman was injured but her wounds are not fatal.

San Jose, recently called one of the safest major cities in the country has seen an uptick in murder these past few months. This weekend makes the number for 2010 a total of 19 murders. There were a total of 28 murders last year.

These killings come on the heels of the controversial killing of a San Jose man by police. San Jose Police were dispatched on calls of a man wielding a knife. On scene, without attempting to subdue the man (i.e. with tasers) the police shot the man to death. He was later identified as Brian Strand Casey, known for a mild disposition. Two other people have been slain by police this year in similar circumstances.