Lunch in the Wild West

A few months after finishing my first attempted murder I was sitting around another courtroom waiting for my case to be called.  I watched another DA give a closing argument in a murder case.  The funny thing was; the murder took place in the same alley as my attempted murder.  The exact same alley!  Right behind the local diner.  I spoke briefly to the prosecutor, who told me that his case went down a few months before mine did.  He blames the violence on a bar that empties into the alley, a notorious bar where gangsters hang out.  My case, however, was more about domestic violence than drunken gangsters.

I was shocked.  I felt like these two cases gave me a window into the volume and frequency of violence in the communities that we serve.  It’s a very different situation from where most of us live.  The alley in question is so pockmarked with bullet strikes that it resembles the Wild West.

I went back to my office and told the story to a couple of coworkers.  They seemed to find it interesting, but not too interesting.  The discussion turned to where to go to lunch.  Before I could even jump in, the choice was unanimous: the local diner.

The Use of Bail in Domestic Violence Misdemeanors

The most effective way to learn new law is to have something happen to you in court.  Here’s something I learned this week: bail can be used in misdemeanor domestic violence cases to give the prosecution the upper hand in plea bargaining.

The general rule is that misdemeanor arrestees get released on their own recognizance.  (Pen. Code § 1270.)  But there is an exception for domestic violence.  If a defendant is arrested for a domestic violence misdemeanor, such as a violation of Penal Code § 243(e)(1) or 273.5, she cannot be released without a bail reduction hearing.  (Pen. Code § 1270.1(a).)  In this situation the prosecutor must be given a two-court-day written notice and an opportunity to be heard on the matter.  (Pen. Code § 1270.1(b).)

So imagine that defendant is in custody for a violation of Penal Code § 273.5.  Defense counsel asks that he be released on his own recognizance.  Is this legal?

No.  Defendant cannot be released OR on this charge unless defense counsel provides the prosecutor with two days written notice.  This will allow us time to contact the victim and find out their position on OR release.  It will also give us time to carefully review defendant’s criminal history.

This means two additional days in custody for your defendant, a powerful incentive for them to plead the case away.  Defendants often want to get out of jail as soon as possible, and will plead guilty to do it.

There is an important exception to this rule.  Bail reduction hearings can be done at arraignment without an additional two days written notice.  This was the holding of Dant v. Superior Court (1998) 61 Cal.App.4th 380.  In that case, the defendant was arrested for violating Penal Code 273.5.  (Ibid at p. 383.)  He was arrested and then arraigned four days later.  (Id.)  At arraignment, defendant made a motion to be released on his own recognizance.  The court declined to rule on the motion because the defendant failed to give the prosecutor two court days’ written notice.  (Id.)  The Court of Appeal held that this was error.  It reasoned that the purpose of § 1270.1 is to prevent release of a defendant OR before she is brought to court.  It specifically mentions the situation where a judge is on duty over the weekend and releases the defendant OR without a hearing or ex parte.  (Id. at pp. 386, 390.)  If a court wanted to provide notice to the prosecutor, the Court of Appeal recommended that a magistrate deny OR and grant a reasonable continuance to obtain additional information relevant to the propriety of such a release.  (Id. at p. 390.)

This rule can also be tricky.  If you argue to the court that the defendant is so dangerous that he needs to be held on bail, you don’t want to then offer him a time-served plea bargain.  You will be saying “he’s dangerous” out of one side of your mouth and “he’s harmless” out of the other.  It will damage your credibility with the court.  Make sure you are asking for jail if you use this technique.  If you are intending to release him anyway, you will hurt your credibility in the future.

How Does Everyone Normally Do This?

The Defendant was an older man, in a slightly out of style suit, the kind that might be worn for church ten years ago.  He was barrel-waisted, at least 45 inches around, and wore a neatly trimmed mustache.  He scowled continually from behind his glasses, with one hand on his cheek, a single finger pointing up to his temple.  His attorney was at least 6’6″ tall, maybe 250 pounds of shoulders in a sport court and black slacks.  His blond hair was slicked back, and he appeared to be in his late twenties.

Defendant’s wife and victim did not wear church clothes to court when she testified against him.  She wore a t-shirt with shiny costume jewelry studs and simple black pants.  She had been sitting in the back of the gallery as the trial winded its way towards completion, with a skeptical look on her face, with her arms folded over her chest.

Defendant was accused of punching his wife several times in the face during the course of an argument.  He had returned home from playing golf to find out that his mother in law was going to be spending the foreseeable future in his house.  He was understandable upset.  He went to bed alone, his wife chose to sleep on the couch in the den.  Defendant woke up in the middle of the night and walked into the den in search of his wife.  He flipped on the light, had a tug of war over the blanket covering her on the couch, and began yelling.

Both the victim and the Defendant testified.  They gave different accounts of what happened next.  Defendant tried to hold the victim down on the couch.  The victim kicked the Defendant to the ground.  He got up, pinned her hands to her chest.  He struck her several times in the face.  She grabbed his testicles and squeezed them until they bled and he was forced to get off of her.

Defendant was charged with spousal abuse in violation of Penal Code section 273.5.  Defendant claimed self-defense.  He argued that he had to punch his wife in order to get her to stop injuring his testicles.

Defense counsel, despite his imposing appearance, was relatively docile during the trial.  For example, his cross-examination of the victim was only 20 questions or so, and lasted about 5 minutes.  He actually apologized to her afterwards and told her that his questioning was “not personal.”  He said that he hoped if he saw her “around town” that she would not hold anything against him, because he was just doing his job.  After the jury returned a guilty verdict, they told him that he seemed like he was “not there to fight.”  I thought that he was deliberately being a nice guy in order to make the Defendant seem less threatening.  I thought that he may have been worried that if he was a jerk they would be more likely to see the Defendant as a jerk, and thus one step closer to a batterer.  If this was his strategy, it fell flat.  After speaking to him, it seemed like this might have been his first trial.  He continually asked me how I “normally” did basic things, when it seemed like his real question was, “how does everyone normally do this?”  He asked me what the result of the preliminary hearing was, even though this was a misdemeanor that did not require a preliminary hearing.  And he didn’t ask the normal cross-examination questions that every defense attorney seems to in virtually every case, no matter what the charge.

I was lucky to have a cooperative victim.  And the victim’s daughter witnessed most of the violence.  She was extremely credible when she testified.  The responding officer came off exactly as you would expect: he didn’t remember anything and was extremely suspicious of defense questioning.  I also had 911 calls, from both the victim and the witness, but they were both much more calm than you would expect them to be given what had happened.  I had photographs of the victim’s injuries, but these were actually less than helpful, because the victim did not appear to be injured, despite the general agreement that she was punched repeatedly in the face.

Defense counsel, despite his inexperience, did make an interesting closing argument.  He argued that if the genders were reversed, and the man had done to the woman what the victim had done to the Defendant, “would we even be here?”  I saw a few jurors nodding along to this line of argument.

But as I said, they returned a guilty verdict.  And during the post-verdict interviews, I found out that the young lady who I though was one of my strongest jurors was actually one of the two initial holdouts.  Another great learning experience.