San Jose Criminal Defense Lawyer Blog

Santa Clara County is one of the few jurisdictions not to provide some kind of legal representation to indigent defendants at their first court appearance. However, a new county policy change will take effect throughout the San Jose and other county courthouses where the Public Defender will provide a representative to assist people at their arraignment on misdemeanor charges.

Typically, too many defendants charged with a misdemeanor plead guilty at the arraignment after a judge informs them of their rights and provides an indicated sentence. This is true of driving under the influence charges, where the judge informs the defendant that he or she can continue the matter to seek out an attorney or plead guilty on the spot and receive the court's sentence. This of course precludes putting up a defense, especially when in Santa Clara County the punishments are often harsher than San Mateo, San Francisco and other surrounding areas.

Usually in these circumstances a Sheriff Deputy is present handing out waiver of right forms, merely anticipating that some or many of the defendants appearing at their arraignment will plead guilty. Although no pressure is placed on these people, the effect is to have more people plead right on the spot. Often, the defendant does not understand the other collateral effects of a guilty plea and conviction without legal representation on hand. Such consequences can be lifetime sex or narcotics registration, lost of driver's license or deleterious effects on immigration status.

It unclear whether misdemeanor cases in Santa Clara County will be expedited or slowed down by this change, but the county has been playing with fire for not providing some representation early on. This new policy will begin with a pilot project at the San Jose Hall of Justice.

Source: Mercury News.

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" »

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?" »

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.

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" »

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" »

With six criminal prosecutions pending, Nancy Chi Ni was arrested yesterday at the Valley Fair Shopping Mall. Police picked Ni up on suspicion of vandalizing a 1999 black Mercedes-Benz E-320, a 2007 silver BMW 335 and a 2007 silver Honda CRV. Ni, 30 years old, was out on bail after she allegedly vandalized another vehicle in Milpitas. She is currently in custody on $1 million bail.

Besides these two latest incidents, the Santa Clara County District Attorney's Office is prosecuting Ni for five other separate incidents and now Alameda County has indicated that she has case pending there as well. All charges are related to acts of car vandalism, particularly in Santa Clara and Milpitas. Ni's bizarre behavior seems to be targeted at luxury cars such as BMWs and Mercedes, although Ni herself drives a black 2009 BMW. Overall, Ni is being charged with 13 vandalisms in Santa Clara County and there are reports of other uncharged vandalisms with the same MO.

In the latest case, police officers observed Ni acting suspiciously (take that for whatever it means) and then saw her scratch a Mercedes. The same thing happened in Milpitas on September 16. Police said that Ni usually carries a knife in her purse and uses it scratch vehicles. No reason why the woman repeatedly damages luxury vehicles.

In 2006, Ni was arrested and convicted for solicitation of prostitution in San Jose. She is a masseuse by trade.

USA Swimming is again in hot water for alleged sexual abuse by San Jose area coaches. Jancy Thompson, a former professional swimmer now claims that her coach sexually abused her while she was training to become and Olympian athlete. This comes on the heels of the capture of another swim coach who is alleged to have sexually abused on his trainees some eight years ago (see my last post below).

Thompson, a scholarship graduate from Arizona State and now resident of the South Bay, claims that Norman Hovercroft abused her at his place of work in Saratoga. Thompson has filed suit with USA Swimming, which has come under fire for past alleged past claims of sexual abuse by its trainers. More than four dozen coaches and trainers have been listed has abusers, although it is unclear if all have been prosecuted.

To hear more about this story from Thompson's lawyer please see the video link below. Bear in mind that no criminal complaint has been filed against Hovercroft; only a civil complaint has been filed agains USA Swimming.

Continue reading "Another San Jose Swim Coach Faces Sexual Abuse Accusations" »

Kaloyan Kaloyanov, a native Bulgarian man, and former international gymnastics star, was apprehended aboard a cruise ship in Mexico. Kaloyanov was accused of sexually assaulting a 15 year old girl with whom he trained. He has been on Fremont's most wanted list for more than eight years.

Kaloyanov competed in the 1997and 1998 Aerobic Gymnastics World Championships, and he also participated in several events with his wife before being charged with the assaults. The girl, now 25, accuses Kaloyanov of assaulting her twice while training with him. He was interviewed by Fremont police at which time he admitted the violations. However, the police and investigators did not arrest Kaloyanov, who fled and has been on the run for the last eight years.

Detectives recently re-opened the case and started with a Google search of the man. They found Kaloyanov's facebook page with pictures of cruise ships. After a few more keystrokes they learned that Kaloyanov worked for Carnival Cruise Lines as a fitness instructor. Fremont police, U.S. Customs and Border Protection, New York Police Department's High Intensity Drug Trafficking Areas Task Force, the U.S. Coast Guard and ship security coordinated Kaloyanov's detention and arrest.

Kaloyanov expressed shock at the lengths the Fremont went into finding him, so many years after he fled. Detective Gebhardt of the Fremont police told reporters that he and his fellow officers never give up; not even on the coldest of cases.

Continue reading "Fremont Man Wanted for Rape Found by Simple Google Search" »

A Livermore woman is facing child rape charges in Alameda County. To be true, that is an understatement. Christine Hubbs, who attended her arraignment before Judge Walker in Pleasanton, is facing 67 separate charges, all alleging she had sexual relations with two boys. That's right, five-dozen charges of the same offense.

Hubbs was arrested this past Thursday, after one of the boy's mother reported possible illegal conduct. The mother is said to have found a nude picture of Hubbs in her son's cell phone. The alleged activity took place between December 2008 to January 2010. The unidentified minors were 14 at the beginning of the alleged activity.

It is further alleged that Hubbs gave gifts and money to the minors during the relationships. It is not known if other minors are being questioned.

Of course 67 counts seems an audacious number. Any good defense lawyer will make hay of the number of incidents alleged by two teenage boys, living in a culture that emphasizes sexual activity and promiscuity. Too many young boys make such daring claims, that one has to question the veracity of these two "victims." No doubt, they have become very popular with their friends and at school.

Certainly, sending a nude picture is inappropriate and illegal, but this does not equate to sex. We should watch this case proceed very closely. Something just doesn't smell right here.

I am a little late in getting to this, but there has been so much to do and write about. On June 8, Deputy District Attorney Jeff Rosen defeated incumbent Delores Carr for the coveted position of top D.A. This came with cheers and happy shouts from defense lawyers and even many prosecutors. Carr came into office vowing to rid it of corruption and manipulation. Unfortunately under Carr's tenure, things got far worse. Suppression of evidence, withholding key witness and downright lying had become all too prevalent in the office for the voters to tolerate.

To give one example, a deputy D.A. used false semen evidence to persuade a jury that the defendant was guilty of rape. In fact that was the "evidence" used by the police to coerce the defendant to confess. The DA latter used that "evidence" as authentic, which resulted in a conviction. No real semen was actually found.

In another example, the DA failed to disclose vital medical records that would have been mitigating for the defense. That DA might very well lose his license.

Carr even ordered all Deputies to boycott one certain judge because she tends to grant "too many" defense motions.

The office has been maelstrom of deceit and unfair practices. Some D.A.s refused court orders. Others ignored evidence. And all the time Carr stood by her people (the guilty ones I mean)

We hope in Jeff Rosen the office will truly be cleaned up and seek justice, not power.

Good Luck Jeff!

36-year old Lionel Blanks of Santa Clara, CA was arrested on six felony charges including rape, sexual penetration, kidnapping and carjacking. The victim, who has not been named, reports that she fell asleep in her car in Palo Alto, to be awakened in the morning by Lionel. It is alleged that he beat and tortured the victim, tied her up and drove off with her. They drove for 20 minutes while Lionel is said to have threatened the victim.

It is further alleged that Lionel pulled the vehicle over and dragged the woman behind a building where he continued to beat her. After tearing the woman's clothes off he raped and strangled her, causing trauma to her neck. She suffered further injuries to her forehead, face including loss of consciousness.

Blanks was arrested at his home where he lives with his wife and children. If convicted he faces a life sentence with no possibility of parole.

Continue reading "Santa Clara Man Accused of Violent Rape" »

The City of Sunnyvale doesn't have a "Police Department" or a "Fire Department." No, actually it has the Office of Public Safety. Now that really sounds like something from the French Revolution, but nevertheless, the OPS is an integrated office of police officers and firefighters. What makes this so different is that every police officer is also a firefighter and well, of course vice-versa. That means an employee of the OPS is a cop on one shift and then a fireman on his next shift.

At first blush this sounds like an efficient operation where the police and firefighters are far more integrated and connected which should prove more resourceful. And this is probably true. But there is an inadvertent darker side to this efficient makeup: the police now have a vehicle for circumventing the 4th Amendment to the U.S. Constitution.

The 4th Amendment keeps us safe from intrusive searches and seizures of our persons, places and things. Most people know that law enforcement cannot search your home without a warrant for example. Now this rule is applied differently (given the circumstances) to police and fire safety personnel. For instance, when a fire damages a home firefighters can rush in to put it out. More to point, when the fire is out, firefighters may remain to investigate the cause of the fire. Police cannot.

Now let's take this scenario to Sunnyvale. House was on fire, the firefighter put it out. Can an OPS officer, wearing blue (acting as a cop) enter the building? Common sense would say no, absolutely, 100% no. Well, according to the Superior Court, this police officer may merely take one hat off and put his other on. The reasoning is convoluted and I will not bore you with it.

Actually, I had a client who experienced this very thing. His apartment caught fire and apartment personnel put it out. The fire unit arrived on scene and entered to conduct an investigation. The police arrive and waited outside, receiving and making reports. Good. Fine. Well, a fireman walks out and up to the commanding police officer and reports that they found pornographic DVDs strewn upon the ground and that there was a computer downloading "something." No warrant. No permission. No probable cause to even get a warrant. The commanding police officer entered the building and searched the apartment, including my client's computer! He was arrested for possession of child pornography. To a Superior Court judge that was just fine.

Of course I wanted to appeal, but the DA offered conditional no state prison. My client took it and served six months.

The U.S. Supreme Court announced this past Monday that correctional facilities may keep certain sex offenders beyond the term of their sentence. The court is upholding a federal law that states if an inmate, convicted of a sex crime, is deemed a danger to the community, he may be further detained even if he has credited out all of his sentence. Justice Breyer penned the decision saying: ""The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose."

The decision is based on the Necessary and Proper clause to the U.S. Constitution which allows Congress to pass legislation that is "necessary" and proper" to facilitating existing law. To this end the court said: "Taken together, these considerations lead us to conclude that the statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others."

However, what were not mentioned by the court, not even in dicta, are the constitutional rights of the inmates. The court ignored the argument that these inmates are protected by the 14th Amendment to the constitution, or the guarantee to equal protection. Also, criminal defendants often plea bargain with the District Attorney and agree to a certain disposition. I would argue that a sex offender forced to stay an extended term, only because Congress says so can overturn his case because the original terms of the disposition have been changed. It much like a contract: you can't change the terms of the agreement.

Antonin Scalia and Clarence Thomas dissented. They argue (and rightly) that this law gives extra-constitutional powers to the federal government, never intended by the founders. Specifically, Thomas said: "To be sure, protecting society from violent sexual offenders is certainly an important end," Thomas writes but continues by saying "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

Continue reading "Supreme Court Goes Too Far" »