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

Vincent Cardinalli, owner and operator of a San Jose area towing company, is currently in police custody on dozens of charges of fraud in what the District Attorney is calling a "tow and sue scam," the Gilroy Dispatch reports. It is alleged that Cardinalli and members of his family would fraudlently tow away vehicles, store them and then eventually sell the cars. The family would then sue the owner for storage and lien sale fees in small claims court. The family is being charged with conspiracy, fraud, forgery among dozens of other felonies.

The fact that is raising eyebrows is a default judgment awarded to Cardinalli in the amount of $4.5 million while he sits in custody awaiting trial. About three years ago Cardinalli offered his services as an expert in small claims court, to a local store owner named Maria. One of Maria's customer provided a bounced check and Cardinalli offered to assist making a claim against that customer in court. Maria signed an agreement giving half of the settlement to Cardinalli. However, when Maria learned of Cardinalli's criminal dealings she reneged on the contract.

In response, and while in custody awaiting trial on his felony matters, Cardinalli filed suit against the store owner for breach of contract. When Maria failed to respond the court entered a default judgment in the staggering amount of $4.5 million! What have experts at a loss is how a court could allow such a default judgment in a law suit brought by an inmate, acting on his own behalf and against a witness in his own criminal matter? Maria testified at Cardinalli's preliminary examination in November and is prepared to testify at trial.

Another judge has since allowed Maria to petition the court and respond to Cardinalli's suit.

Cardinalli has now been declared a vexatious litigant and is also being charged with practicing law without a license.

Source: Gilroy Dispatch

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

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.

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.

In a 5-4 decision the United States Supreme Court upheld a three judge panel in California that ordered the release of 38,000 to 46,000 state inmates. The opinion, penned by Justice Kennedy, declared that the state of the California prisons violates the Eighth Amendment to the United States Constitution. The California Department of Corrections (DOC) reported that the state penitentiaries are over-flowing capacity by 32,000 inmates. (Also see Los Angeles Times article dated May 23, 2011.)

Kennedy wrote that because of the over-crowded conditions in the state prisons, "prisoners may be deprived of rights that are fundamental to liberty." See Brown v. Plata (2011) 2011 U.S. Lexis 4012. Kennedy went on to say:

"Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

A majority of the court concluded that there was clear and convincing evidence that the overcrowding is affecting the health and welfare of the prison population, in violation of Federal rights. The court further upheld the lower three judge panel's determination that the exploding prison population now deprives inmates of basic sustenance and medical care.

This is a surprising opinion from the high court as it has routinely denied the release of individual prisoners in the past and has overruled lower courts allowing such releases.
It is also unclear exactly how many inmates will be released. The court differed to the three judge panel to work out the details of the prisoner release.

Continue reading "California to Release Thousands of Prisoners" »

The Secure Communities Program, operated by the Immigration and Customs Enforcement Agency (ICE) has been under fire recently. The program requires that local county jails provide all booking fingerprints of new arrestees to the Federal Government. The stated goal of the program is to "improve[] public safety every day by transforming the way criminal aliens are identified and removed from the United States." (see www.ice.gov). The fingerprints are checked against FBI criminal history records and records from the Department of Homeland Security.

Santa Clara and San Francisco counties have attempted to prevent booking fingerprints from being immediately sent to ICE, although this may be in violation of the US Constitution's Supremacy Clause. These counties allege that the Federal Government is deporting undocumented workers for misdemeanors and other minor offenses, which is having a grave impact on families.

The Los Angeles Times reports that State Assemblyman Tom Ammiano has introduced a bill that would modify California's obligations under the Secure Communities Program. The bill would call for automatic disclosure of fingerprints of convicted felons only. Thus fingerprints taken when a person is arrested would remain with the local authorities and only released if such person is convicted. Under these provisions only people who have been convicted of serious and violent crimes would have their fingerprints routed to the Federal Government for the purposes of deporting illegal immigrants.

The legality of the program is itself under review, with accusations of its unconstitutionality or at the very least having exceeded its original authority.

Continue reading "California Seeks to Alter Mandatory Release of Fingerprints" »

A pedestrian was found dead in the early morning hours in Pacifica Sunday, after being hit by a vehicle. The unnamed person was found by local police at or around 1:30 a.m. near Sharpe Park Road. During the investigation an unnamed motorist arrived on the scene and admitted that he was responsible for the hit and run that resulted in the death. Police determined that the motorist was intoxicated at the time of the accident and arrested him on a felony manslaughter charge.

The Law in California allows the District Attorney to bring felony manslaughter charges where the driver of a motor vehicle was intoxicated and a passenger or pedestrian dies as a result. The standard for a manslaughter charge is 1) the driver was under the influence or alcohol or drugs; 2) a separate felony, misdemeanor or infraction was committed by the driver that is likely to cause a death; 3) the driver committed that act with gross negligence and 4) A person was killed as a result.

However, there are some questions that need to be answered. First, how did the police determine that the motorist was intoxicated at the time of the accident? How much time elapsed between the incident and the motorist's return to the scene? Did the police perform a preliminary alcohol screening? Are there witnesses who can testify that the motorist committed some other violation, felony, misdemeanor or infraction (the second prong of the factors noted above)?

Of course a forensics investigation will continue by law enforcement . However, if certain factors cannot be determined the motorist may have a defense or at least certain mitigating factors.

Continue reading "A DUI in Pacifica Leads to Death" »

Clay Rosas, a five year veteran of the Santa Clara Police Department (and San Jose before that) is being held without bail for handing over confidential criminal and DMV records to a member of the Santa Cruz chapter of the Hell's Angels. Specifically, Rosas is being charged in state court for furnishing confidential information, fraud and conspiracy. Also included in the indictment are Billy Bettencourt of the Hell's Angels and Vivian Rodriguez.

However, Rosas is now being charged in Federal court for the same crimes. Federal court is a separate jurisdiction and is not bound by the rules of double jeopardy should Rosas be cleared in state court. Rosas has two criminal defense attorneys working up each case respectively, which in Federal court may bring 20 years in the Federal penitentiary and/or a three year term in state prison. Federal authorities have added other charges such as fraud committed by a peace officer.

It is alleged that Rosas' motive was simple: money. According to the indictment Bettencourt gave an undisclosed amount of cash in the form of a loan. Rosas then supplied Bettencourt with confidential information and would receive an "extension" on that loan. It has not been disclosed why Bettencourt wanted the information or who he was interested in.

Bettencourt is looking at a life term because he is subject to California's Three Strike Laws. For Rosas, it is unlikely that he will face the maximum of 20 years because of his otherwise exemplary record. He was a police officer in both San Jose and Santa Clara and is a former Marine Sergeant who served in Iraq. He is more likely to get the mid-term of ten years. Truth be told: the Feds don't play games.

Continue reading "Santa Clara Cop Now Faces Federal Charges" »

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.

Recently, Santa Clara County Supervisors agreed to not participate with a federal program that requires local county jails to share the fingerprints of inmates who are in the country illegal to federal immigration officials and Immigration and Customs Enforcement or ICE.

The national Secure Communities Program, created about a year ago, is designed to collect fingerprint information to locate and ultimately deport those inmates who are in the country illegally. One report credits that the program is responsible for more than 47, 000 deportations.

Other Counties, such as San Mateo and San Francisco had objected to the program, but those protests have been toned down in recent months after the Department of Homeland security said that local jurisdictions can "opt out" of the program. Secretary Napolitano repeated this pledge in a letter to Congresswomen Zoe Lofgren.

However, last month ICE seems to have changed its attitude and indicated that it is willing to work and talk with local authorities, but the agreement to participate is between the Federal Government and the States, not with those local municipalities. It seems that the local authorities, who are to disseminate information regarding their inmates, have no say in the matter.

Today, if an inmate is here illegally, and serves actual time in a county jail, the government may place an immigration hold on him, which leads to eventual deportation. Under the federal program any illegal immigrant who merely books with the jail will face possible deportation. No longer will attorneys be able to prevent deportation by obtaining an alternative to jail, such as electronic monitoring, weekend work etc. Let's see how far Santa Clara will go with this.

Continue reading "Feds to Santa Clara County: Fork over the Fingerprints" »

Each attorney at trial is allowed a certain number of "peremptory challenges" to dismiss potential jurors from hearing the trial. Other dismissal can be for "cause" if each side believes the potential juror unfit from sitting in the jury box.

However, race, gender, national origin among others cannot be used as factors when dismissing a juror, whether it be a peremptory challenge or for cause. The court system will not allow trial attorneys to manipulate the legal system by excusing someone merely because he or she is the same race as the defendant or victim or when race plays some other role at trial.

In 2008, Santa Clara County prosecutor Alison Filo did just that, so says the 6th District Court of Appeal. In 2008 defendant Khoa Khac Long was being prosecuted for rape and theft of a prostitute. Deputy District Attorney Filo excused three Vietnamese jurors claiming it was based on factors other than race. In fact she gave Judge Gilbert T. Brown three different excuses for each juror:

1.The first juror did not speak English well enough to understand the details of the case. Never-mind that the court offers Vietnamese language interpreters for just these instances.

2.The juror's sister was prosecuted for fraud in the past, which would prejudice the juror's view of the legal system. Of course this is purely speculative at best

3.For the third juror, Filo said: "I don't feel comfortable with his body language." This juror even said things that were favorable to prosecution!

Judge Brown excepted these explanations and after a jury was selected and trial concluded, Khoa Khac Long was found guilty of the charges. She is currently serving a 14-year prison term, but now may get a new trial based on the appellate court's ruling.

Continue reading "San Jose Judge Allowed Race to Improperly Dismiss a Juror" »