September 9, 2008

SAN DIEGO CRIMINAL DEFENSE ATTORNEY MARY FRANCES PREVOST WINS VICTORY FOR COACH WRONGFULLY ACCUSED OF SEX CRIMES AGAINST PLAYER

By Matthew Rodriguez
UNION-TRIBUNE STAFF WRITER

5:40 p.m. September 8, 2008

VISTA – A judge dismissed charges Monday against a North County softball coach accused of having unlawful sex with a 17-year-old female player after a jury deadlocked in his trial
Defense attorneys for 37-year-old Christopher Facione, founder of the Next Level Athletics in Encinitas, said Facione felt vindicated by the dismissal.

Click HERE and HERE for recent stories.

“He is so happy to be able to clear his name after this ordeal,” said Mary Frances Prevost, one of his attorneys.

Prevost said the case revolved around the credibility of the player. “We were able to prove that the witness lied repeatedly,” she said.

Authorities alleged Facione had unlawful sex with the teen at his Carlsbad home on two occasions: Oct. 2, 2007, and sometime between Oct. 7 and Oct. 20, 2007.

Defense attorneys argued that the player stopped going to practice and lied to her parents about why by saying that Facione was harassing her, prompting her father to go to police.

“She couldn't stop the snowball from getting bigger and bigger,” Prevost said.

Jurors were split 8 to 4 in favor of acquittal for the alleged Oct. 2 incident, and 11 to 1 in favor of acquittal regarding the second.

“The jury had questions on the believability of the evidence,” said Sean Leslie, also an attorney for Facione. “They feel they didn't meet the burden.”

After jurors came back deadlocked, Judge Joel Pressman dismissed the case.

Facione faced a maximum sentence of three years and eight months in prison if convicted.

Prevost said prosecutors offered to reduce the charges to one misdemeanor count, without jail time, after their first witness, a Carlsbad police detective, took the stand. But Facione refused the offer, Prevost said.

Prevost said Facione is still involved with Next Level Athletics, an Encinitas-based youth sports organization, and will continue to coach, but he had stayed out of the dugout and limited contact with players while the case was pending.

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September 8, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SACRAMENTO POLICE OFFICER ARRESTED FOR INDECENT EXPOSURE

Sacramento police officer arrested in Rocklin
From Niesha Lofing

A Sacramento police officer has posted bail after being arrested in Rocklin this weekend, according to records and police spokesmen.

Jeffrey Wayne McKay, 34, of Rocklin, was arrested by Rocklin police late Saturday on suspicion of indecent exposure, exhibiting a deadly weapon, disorderly conduct and threatening to commit a crime resulting in death or great bodily injury, according to online Placer County Jail information.

McKay was booked into the Auburn jail at 11:40 p.m. Saturday and was being held on $15,000 bail.

He was released on a bail bond.

Information about McKay's arraignment hearing was not available early Monday morning, a Placer County Superior Court clerk said.

McKay has worked as a Sacramento police officer for six years and is assigned to the Metro Division, said Sacramento police spokesman Konrad Von Schoech.

He said an administrative investigation is under way. He declined further comment.

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September 6, 2008

RAMONA WOMEN SHPPORTS RAMONA SHERIFFS' ON DUTY ABUSE

Woman Defends Posing with On-Duty Deputies
Contributor: Antonio Castelan
Reported by: Jeff Powers
Last Update: 9/05/2008 12:10 pm

A 21-year old Ramona woman is telling her story about posing with San Diego County Sheriff Deputies. The pictures show woman getting handcuffed, and put in the back seat of a squad car. This all happened while the officers were on-duty at Molly Malone's Tavern.

Jenny Dawson remembers a fun December night at the Ramona bar. She and her cousin approached the sheriffs deputies there.

"They wished me a happy birthday," Dawson tells San Diego 6. "I didn't get harrassed at all. I simply asked them if they could put me in the back of the cop car."

Dawson's cousin, Bobbie Dawson, snapped the photos.

Bobbie Dawson remembers thinking, "Oh yay! Let's take a cute little picture of my cousin with the cops."

Jenny sat in the back of the squad car.

She says, "I thought it would be fun and stuff to say to my friends the next day. 'Yeah, I got put in the cop car on my 21st birthday' just for laughs."

The sheriff's department is doing an internal investigation. They are not saying if the deputies under investigation are still on patrol. There are 6 pictures. All were taken at Molly Malone's bar in Ramona over the past 5 months to a year. And they were taken by Ramona resident Allen Baker. Two deputies are seen in the photos, Jesse Allensworth and Colby Hodge.

The man who took them Allen Baker says, "They were slapping girls in the butt, handcuffing them, putting them in their police cars for fun for their birthday. They were taking photographs of them in their police cars while the were 'fakely' arrested. While they're supposed to be on taxpayer dollars."

Baker says deputies are at this bar while on duty several nights a week for hours at a time. We spoke with the manager of Molly Malone's who confirmed Baker's story. Though he declined an on camera interview, the manager told us several deputies frequent the bar while on duty.

In court at a preliminary hearing Deputy Hodge faced Baker. The two got into a fight outside Molly Malone's several months ago. The DA wanted Baker to face felony charges for the incident, but a judge reduced them to a single misdemeanor.
Baker's public defender says the beating and photos are the tip of the iceberg. She says there is a culture of corruption at the Sheriff's Ramona substation.

Sheriff's Spokesperson Jan Caldwell said, "We need to conduct a thorough and methodical inquiry." Caldwell says the Sheriff's department has already begun an internal investigation. "We take these things very seriously. We will investigate and we will vet it all the way to its logical conclusion."

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September 4, 2008

CALIFORNIA CRIMINAL DEFENSE:JURY SELECTION - BATSON - PROSECUTOR'S SPECULATIVE REASONS

JURY SELECTION: PROSECUTOR'S SPECULATIVE REASONS

Paulino v. Harrison (9th Cir. 9/4/08, 07-55429) 08 C.D.O.S. 11772

On remand from Ninth Circuit to district court to conduct evidentiary hearing to allow prosecutor to explain her actual motivations for the peremptory challenges, prosecutor testified she had no memory of the jury selection or her reasons for striking the jurors, could not find her notes, and reading the transcript of the jury selection did not refresh her recollection.

"Therefore, instead of explaining her actual non-discriminatory reasons for exercising her peremptory challenges, the prosecutor offered hypothetical race-neutral reasons for striking each potential African-American juror in question. She acknowledged that the reasons she articulated were mere speculation drawn from her reading of the voir dire transcript. Indeed, she testified that all the parties present — herself, the State’s attorney, Paulino’s attorney, the magistrate judge — were 'on the same page;' all each could do was comment on the transcript." The magistrate judge before whom the hearing was held recommended the petition be granted, and the district court adopted the recommendations.

In affirming the district court's ruling, Judge Richard Paez, speaking for the panel, says: "The State attempts to turn the prosecutor’s testimony about the transcript into circumstantial evidence by recasting her conjectured reasons as 'reconstructed' reasons. The State lifts the term 'reconstructed' from cases, like this one, that involved “reconstruction” hearings — that is, an evidentiary hearing that takes place some time after the trial, where the prosecutor testifies to her actual reasons for striking the venire-members in question, or the State presents circumstantial evidence of those reasons — and misapplies it to the prosecutor’s testimony here. [Fn. om.] Her reasons were not 'reconstructed,' as that term is used in Batson cases; they were constructed out of whole cloth. As the district court found, the prosecutor did nothing more than guess why she might have removed the jurors in question."

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September 4, 2008

NO MANDATORY SEX REGISTRATION FOR CONSENSUAL ORAL SEX WITH A 14-YEAR OLD

In Hofsheier (37 Cal.4th 1185), the California Supreme Court held that mandatory sex offender registration under PC 290 for consensual oral copulation with a minor 16 or 17 violated equal protection, because consensual sexual intercourse with such a minor didn’t trigger mandatory registration.

This Court of Appeal applies Hofsheier to hold that mandatory registration for Penal Code 288a(b)(2), consensual oral copulation with a 14-year old, also violates equal protection.

People v. Hernandez; 2008 DJ DAR 13935; DJ, 9/4/08; C/A 2nd, Div. 2

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September 3, 2008

CALIFORNIA DUE PROCESS TRAVESTY

HARMLESS CUNNINGHAM ERROR

The court imposed upper term based on the victims being particularly vulnerable, but the defendant didn’t admit that nor did the jury find that fact. And so the sentencing must be reversed as a violation of Cunningham (549 U.S. 270), right?

Nope. They find harmless error: a jury would have found that the victims were particularly vulnerable. Hey, just deny the defendant a jury trial on everything and then affirm by finding that any jury would have convicted anyway.

Why do we bother with these troublesome juries?

People v. Esquibel; 2008 DJ DAR 13876; DJ, 9/3/08; C/A 2nd, Div. 8

September 3, 2008

SAN DIEGO DUI DEFENSE NEWS: 19-YEAR OLD GETS YEAR IN JAIL FOR DUI DEATH

By Dana Littlefield
UNION-TRIBUNE STAFF WRITER

8:36 p.m. September 3, 2008

SAN DIEGO – A 19-year-old man convicted of drunken driving and killing a homeless man walking on a Midtown street was ordered Wednesday to serve a year in county jail and placed on five years' probation.

Alec O'Keefe Rowe of Kensington pleaded guilty in July to gross vehicular manslaughter while intoxicated and hit-and-run in connection with the Jan. 16 incident.

During an emotional hearing, San Diego Superior Court Judge Jeffrey Fraser determined that probation was appropriate given the defendant's age and other factors. Fraser said that in his 11 years on the bench, he had never given probation in a case with similar charges. But he said Rowe was exceptional given his level of remorse and his commitment to rehabilitation. The judge noted that if Rowe violates the terms of the probation, he will be sent to prison.

“You're getting a break, and whether or not this was the right thing for this court to do will be determined in the next few years,” said Fraser, who noted that Rowe would not be allowed early release from jail.

“If I were you, I'd take advantage of the break you're being given.”

Deputy District Attorney Melissa Vasel had asked the judge to sentence Rowe to six years in prison for killing Darin Albert Victor, 38. She noted that although the courtroom was packed with people who supported Rowe, no one was there to speak on the victim's behalf.

“He's still a person, and he didn't deserve this,” Vasel said in court, adding that she objected to any characterization of the incident as an “accident.”

“Everything that happened that night was a function of Mr. Rowe's choices,” the prosecutor said.

Rowe was arrested a few blocks from India and West Washington streets, where Victor was hit around 11 p.m. Witnesses saw him swerving the car he was driving moments before the crash, the prosecutor said.

Rowe fled but was detained by passers-by. Later, his blood-alcohol level was measured at 0.22 percent, the prosecutor said. The legal limit is 0.08.

Deputy Public Defender Mel Epley said he had seen Rowe “grow and change” since the collision. Epley noted that his client had the support of numerous family members and friends, many of whom packed the courtroom Wednesday.

Before he was handcuffed by sheriff's deputies, Rowe told the judge he was sorry for what he had done and vowed to improve his behavior in the future.

“I'm not gonna waste this opportunity to change my life,” he said.

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