Orange County Criminal Attorney Blog

A series of hazing cases at Florida A&M University (FAMU), one of which resulted in the death of the marching band's drum major, have resulted in criminal charges for thirteen people. Eleven people face felony hazing charges, and prosecutors have filed more than twenty misdemeanor charges. The case has brought attention to the issue of hazing and how states have chosen to criminalize it. Anti-hazing statutes often fall within a state's criminal assault laws, only requiring proof that a defendant participated in hazing that resulted in death or serious injury.

On November 19, 2011, members of the FAMU band, the "Marching 100," boarded a charter bus in Orlando after a football game. Robert Champion, the 26 year-old drum major, would be the subject of an alleged band tradition, in which a current or prospective band member would walk from one end of the bus to the other while bandmates kicked and punched at him or her. About twenty people were reportedly on the bus when Champion began crossing it. At some point while he was walking through the bus, Champion collapsed. Bandmates called 911, and an ambulance arrived and took Champion to the hospital. Doctors pronounced Champion dead upon his arrival. The medical examiner later ruled that he died from blunt force trauma that occurred during the hazing.

Continue reading "Band Members Charged in Hazing Death of Florida A&M Drum Major" »

A mother and daughter reportedly made a shocking discovery after ordering sweet tea at a McDonald's restaurant in Simpsonville, South Carolina, and a teenage employee of the restaurant could spend years in prison as a result. They discovered phlegm floating in the tea after they took their order home from the restaurant on Saturday, April 14, 2012. Police arrested the employee who allegedly served them the tea and have charged him with a felony offense. Spitting in a customer's food is a common joke among restaurant employees, but the criminal case could have serious consequences here.

According to Greenville County sheriff's deputies, the mother and daughter ordered sweetened tea at the McDonald's drive-thru. They say that the women asked for new drinks after receiving the original order because the drinks were not sweet. An employee, 19 year-old Marvin D. Washington, Jr., handed them new cups, which they said were also not sweet. They decided to sweeten them at home rather than return to the restaurant again. When they got home and removed the lid of one of the cups, they say they found a "large deposit of phlegm" on top of the drink. The women reportedly called the police right away.

Local news station WYFF reported that police arrested Washington and charged him with "unlawful and malicious tampering with food." An arrest warrant reportedly stated that surveillance footage showed Washington leaning over the two cups before he filled them with tea.

Continue reading "Restaurant Employee Charged with Food Tampering, a Felony, After Phlegm Found in Tea" »

A California state legislator has proposed a bill that would bar individuals convicted of certain violent offenses from attending professional sports events. The bill, known as the "Improving Personal Safety at Stadiums Act" and filed as AB 2464, would create a "Ban List" to be published online and distributed to stadiums and other sports venues. In a manner similar to a restraining order, a person on the list who tries to attend a sporting event could be charged with a misdemeanor. The bill has many critics, and it raises concerns about due process and other rights.

Mike Gatto, a Democratic Assemblyman from Los Angeles, introduced the legislation in part to respond to the beating of Bryan Stow last year. On opening day of the 2011 Major League Baseball season at Dodgers Stadium, San Francisco Giants fan Bryan Stow suffered a near-fatal beating at the hands of several Dodgers fans. Stow continues to recover from his injuries to this day. Gatto hopes that his bill will protect sports fans from this sort of violence.

The bill targets violent offenses such as assault with a deadly weapon, assault causing serious bodily injury, or robbery committed in or near a sports stadium, during or in close proximity to the time of a sporting event. This would include offenses that occur while tailgating, while watching a game, and while entering or leaving an event. It would cover major league baseball, basketball, football, hockey, and soccer teams, starting in July 2013. Each sports team covered by the law would have to pay $10,000 towards creating a ban list and establishing a "rewards fund" for witnesses that come forward.

Judges would have authority under the bill's provisions to place a "violent offender" on the ban list for as long as five years for a first offense. Second and third offenses could trigger ten- and twenty-five-year bans respectively. The bill also allows judges to extend prison terms through sentencing enhancements. Attempting to attend an event while on the ban list would constitute a misdemeanor offense with a potential jail sentence of up to one year and a $10,000 fine.

Continue reading "Proposed California Bill Would Ban "Violent" Fans from Sporting Events" »

A boy accused of accidentally shooting his classmate at a Seattle-area school with a gun he brought to school has received deferred prosecution from the court, along with a reduction of the primary criminal charge from third-degree assault to reckless endangerment. Charges for unlawfully possessing a firearm and bringing a firearm on school grounds still stand. He will also offer testimony against his mother for her alleged role in giving the boy access to the pistol. The shooting victim, eight year-old Amina Bowman, remains in serious condition in the hospital.

The nine year-old boy, who remains unnamed, brought the gun to school, where he is a third-grade student, in his backpack on Wednesday, February 22. At about 1:30 p.m., the gun went off in his backpack, and the bullet struck Bowman in the abdomen. She was airlifted to a nearby hospital, and the boy was taken into custody by police.

Bowman's condition remains listed as "serious," but she is also reported as "recovering." According to Seattle's NWCN News, she has had five surgeries so far and may need more, as the bullet struck several of her vital organs.

Police charged the boy with assault, unlawful possession of a firearm, and bringing a weapon to school. A judge lowered his bond from $250,000 to $50,000 at a preliminary hearing the day after the shooting. The boy's father and uncle, who is reportedly his legal guardian, told the media that they believed he got the gun from his mother's boyfriend during a visit the previous weekend. At the time of the preliminary hearing, law enforcement had not indicated whether they intended to investigate the parents or other adults.

The boy and his attorney quickly reached a plea as to the assault charge. The court approved the deferred prosecution agreement on March 6. He will have to complete a one-year period of community supervision, and he must perform forty-eight hours of community service. He must also reside in a home approved by the court, write a letter of apology to Bowman, stay away from his mother, and assist in the prosecution of his mother and her boyfriend.

The court issued warrants for the arrest of the mother and her boyfriend for their role in allowing the boy access to the gun. They are reportedly attending a NASCAR event in Nevada at present.

Continue reading "Boy Accused of Shooting His Third-Grade Classmate Receives Deferred Prosecution; Arrest Warrant Issued for Boy's Mother" »

A woman accused of drugging and mutilating her husband was indicted on Thursday, January 5 for felony counts of aggravated assault and mayhem. The case has captured considerable media attention for its gruesome and prurient allegations. She was scheduled for arraignment in Santa Ana on January 9, but the court continued the matter until February 2. She is still in custody on $1 million bail.

Catherine Kieu is accused of drugging or poisoning her husband in July 2011. While he was unconscious, she then allegedly tied him to the bed, cut off his penis with a 10-inch kitchen knife, and threw it in the garbage disposal. She turned on the disposal, effectively destroying the organ. Kieu called 911 herself and was there when emergency responders arrived. They found the husband still unconscious, still tied to the bed, and "bleeding profusely." According to authorities, Kieu confessed and told them that her husband "deserved it."

The husband, whose identity remains anonymous, was taken to the University of California at Irvine Medical Center. Police had reportedly recovered parts of his penis from the garbage disposal. The primary concern once the man reached the hospital, however, was to stop the bleeding. Doctors were not able to reattach his penis, but the man survived.

The couple had gotten married in December 2009. The husband filed for divorce in May 2011, about six weeks before the alleged attack. The two had continued to live together in a condo in Garden Grove.

The case inspired a great deal of media attention. Kieu's claim that her husband "deserved it" led to much speculation as to her motive for the alleged crime, but she has never spoken out again in public on the matter. Since the husband remains anonymous, his side of the story is still unknown. This did not stop people from developing scenarios, some suggesting that he was somehow abusive, and others assuming that she was crazy and violent. In reality, very few facts are known about the incident, and Kieu has pleaded not guilty. The famous nature of the case may make her defense difficult, as much of the country heard about her last summer.

Continue reading "Indictment Issued for California Woman Accused of Drugging and Mutilating her Husband" »

The Los Angeles County District Attorney's Office announced last week that they will not file felony charges against Elizabeth Macias, who made headlines the day after Thanksgiving for allegedly pepper-spraying fellow shoppers at a Wal-Mart in Porter Ranch. The case gained worldwide attention when video of the incident appeared on the news and online. The DA's office has referred the matter to city prosecutors, who may decide to bring misdemeanor charges against her.

The alleged pepper spray attack occurred as part of the chaos of what is commonly called "Black Friday," the day after Thanksgiving and widely considered the biggest shopping day of the year. Retailers offer a variety of sales, and shoppers often line up in the middle of the night so as not to miss out on deals. This year saw a number of outbreaks of violence, but the case in Porter Ranch got a particularly large amount of attention. On Thanksgiving night, Macias allegedly used pepper spray on a crowd of people who were attempting to get half-price Xbox 360 video games. At least fourteen people were directly sprayed or came into direct contact with the substance, while another ten people suffered symptoms of exposure. Symptoms include sore throats and eye irritation, while direct contact can cause intense pain. No serious injuries were reported, but at least twenty people reported irritation to the nose and throat.

Macias turned herself in the day after the incident. Police did not take her into custody. She refused to answer any questions about her involvement. She later threatened to sue Wal-Mart for failing to provide adequate security on Thanksgiving, characterizing her actions as self-defense. She was in the store with her two teenage children. She claims that shoppers attacked her children while they were attempting to get Xbox video game consoles, punching and kicking both of them.

Police reportedly interviewed at least a dozen witnesses, getting an overall account of people screaming, getting shoved into shelves and displays, and pushing and pulling at each other. In this environment, people then encountered pepper spray, resulting in what police called "total pandemonium." Police had originally described Macias as a "competitive shopper" who used the pepper spray to keep shoppers away from merchandise she had claimed. Eyewitness accounts and other evidence led them to revise their characterization of Macias. The resulting uncertainty likely played a role in the district attorney's decision not to file felony charges.

Continue reading "Los Angeles District Attorney Declines to Prosecute Wal-Mart Pepper-Sprayer" »

A former CIA contractor faces charges for assault in Colorado following a fight with another man over a parking space outside of a bagel shop. The man had been in the news earlier this year for a shooting incident in Pakistan. On the morning of Saturday, October 1, the alleged assailant got into an argument with another customer over who had the right to a particular parking space. The alleged assailant admits that he hit the victim first, but he also claims that the victim hit him at least five times. He was arrested and charged with third-degree assault.

The victim suffered multiple injuries, including a fractured vertebra, adhesions and contusions, and head injuries. When the alleged assailant was arraigned in court on Tuesday, October 4, the victim appeared bearing a large U-shaped wound on his forehead. Upon learning of the victim's broken back, authorities changed the charges from third-degree to second-degree assault.

Third-degree assault is a misdemeanor under Colorado law. The statute defines it, in part, as knowingly or recklessly causing bodily injury to someone, or negligently causing injury to someone with a deadly weapon. Second-degree assault, meanwhile, is a felony. Its definition includes intent to cause bodily injury to someone, and then causing such injury to a person with a deadly weapon. If no weapon is involved, the statute states that the bodily injury must be "serious." Note that the injury does not need to be to the person the accused intended to injure. The statute also defines second-degree assault as recklessly causing injury to someone using a deadly weapon.

The two key distinctions between the two levels of assault are the severity of the injuries and the mental state of the accused. None of the reporting on the incident indicates that anyone used a weapon, although reports note that the victim had a distinct wound on his forehead. The elevation of the charge by police hinges on further news of the victim's injuries, which went from "bodily injury" to "serious bodily injury" with news of the spinal injury. In this sense, the charge faced by the alleged assailant is based on the harm he caused, not on what he was thinking or feeling at the time. The exact same conduct could lead to different charges depending on how badly someone is injured.

Continue reading "Former CIA Contractor Charged with Assault for Fight, Spinal Fracture" »

Philadelphia police arrested three people this weekend after a landlord found four mentally disabled adults held captive in the basement of his building. He found them while investigating a dog dish he found in the basement, expecting to find a dog hidden somewhere. Investigators believe the four spent a week trapped in a tiny room, 10 feet by 15 feet, with little food or water. One person was chained to a radiator. The three suspects and the four captives apparently traveled together from Texas to Florida and then Philadelphia. The suspects are accused of holding the people captive in order to steal their social security checks and face numerous criminal charges.

Both Philadelphia police and the FBI are investigating the case. The suspects face multiple charges, including aggravated assault, kidnapping, and criminal conspiracy. Since the group may have crossed state lines in the course of committing various crimes, they could face prosecution under both Pennsylvania and federal criminal statutes.

Authorities have charged the suspects with multiple offenses related to the crime of kidnapping. "Kidnapping" is legally defined as the act of transporting a person against that person's will, often with the intent to keep the person confined. The purpose of the kidnapping is not as important as the intent to move the person without consent, although punishment may be enhanced if the kidnapping is for ransom or if the defendant used a weapon. Kidnapping is considered a serious felony. The suspects also face charges of unlawful restraint and false imprisonment. These offenses refer to the act of holding a person against the person's will, particularly by restraining someone to an object like the radiator. False imprisonment is both a felony criminal offense and a civil tort claim.

The suspects have also been charged with aggravated assault. This could refer to the act of transporting the people or holding them against their will, as well as the harsh conditions in which they kept them. Besides lacking food and water, police reported that the room reeked of human waste. The crime of assault can include more than a stab or punch. It can involve any sort of physical contact without consent. The severity of the peoples' confinement allows authorities to enhance the offense by adding the "aggravated" factor.

Continue reading "Four Mentally Disabled People Kidnapped and Held Captive in Philadelphia" »

A mistrial was declared when a jury deadlocked in the attempted murder trial of two men and a woman. The jury deliberated for nearly two days before they announced they could not reach a verdict.

The case involved an alleged conspiracy by the three to kill a Fountain Valley man with a machete. The victim, Sharpski, was seriously injured in the March 2008 attack. The prosecution alleged one of the defendants, the victim's wife, wanted Sharpski dead because of past abuse. The second defendant, and alleged hit-man, was promised $5000 to commit the murder. The third defendant was the wife's boyfriend and was alleged to have assisted in the planning.

The jury foreman indicated three jurors questioned the DNA evidence linking the hit-man to the crime scene. Testimony revealed he was at the scene on an occasion prior to the attack, during which he suffered a nosebleed.

In the course of the attack, the victim resisted and caused the assailant to bleed thereby leaving his blood at the scene. The victim suffered a skull fracture and severed fingers.

Both sides agreed the victim was a heavy drinker as well as abusive to his family. All three defendants, however, argued they had nothing to do with the attack.

Following the mistrial, the court set a date of July 1, 2011 for selection of a new trial date. The District Attorney can, by then, determine who to retry.

In a case where three defendants are charged with a brutal assault, the failure to get a verdict against any of them indicates the jury did not believe the prosecution had a strong case. The Law Office of Barney B. Gibbs has had many hung juries over the years. Even though the defense needs only 1 juror to hang a case, the strength of the People's case can often be determined by the split of the hung jury. When the split approaches a 50-50 split or favors the defense, even the prosecutor should consider whether or not it is possible to get a verdict under the present facts. Trials take time and cost taxpayers money. Whereas a District Attorney on an 11-1 for guilt split may believe a lone holdout hung the case, a greater split might indicate negotiations for a disposition may be the better path the second time around.

A former corrections officer charged with rape and kidnapping has entered a plea of no contest to a lesser charge and will testify against his co-defendant.

Ex-Corrections Officer Jeff Jelinek, who was charged with the rape and kidnapping of a young mother in Fontana, was facing a possible life sentence. In return for his testimony against friend and co-defendant Anthony Orban, Jelinek will be sentenced to approximately 5 years in state prison. Jelinek pled no contest to assault with a deadly weapon, accessory after the fact and false imprisonment.

This case made headlines in 2010 when Jelinek and Orban, after a day spent drinking, began stalking women. Orban subsequently spotted the victim leaving work and forced her at gunpoint to a secluded location, where he raped and physically assaulted her. The sexual assault and beatings continued for nearly 2 hours. At one point, Orban sent pictures and emails to Jelinek documenting the assault. The victim was able to escape when Orban became distracted. Orban left his gun and glasses in the victim's car.

What makes this case so disturbing is that both defendants were sworn peace officers. Orban was a detective in Orange County and Jelinek was a corrections officer. Further, while getting drunk that day, both officers were carrying firearms. Police officers are human beings just like everyone else and are liable to make mistakes just like everyone else. However, the screening process used to hire these two individuals should be carefully reviewed. Both of these officers' work performance reviews should also be scanned in order to see what possible "red flags" were present. It is understandable that a peace officer can get a DUI after a night out on the town. But for two officers, from different agencies, to kidnap, rape and beat a woman leads one to believe there must have been some previous signs which may have gone unnoticed.

Michael Balderas was convicted Tuesday of 2nd degree murder in the 2006 death of his 2-year-old niece. He was also convicted of assault on a child likely to produce great bodily injury.

Mr. Balderas claimed he punished the child because she continued to mess her diapers, even after he warned her that there would be more spankings if she didn't stop. Mr. Balderas believed the child was defying him. After beating the child on March 30, 2006, he noticed she was unconscious and was unable to resuscitate her. The child was pronounced dead as a result of blunt force trauma. She had bruising on nearly every inch of her extremities.

In this society, there is a belief in corporal punishment to children. A case like this, involving a child who was brutally beaten to death, does not necessarily call for personal introspection because few people subject children to the type of abuse this man did. Most people probably raise children the way they were raised and this can be either good or bad. Learned childrearing techniques are passed down from generation to generation. Although the law gives parents the right, within reason, to use physical force in disciplining a child, it is up to the parent in the heat of the moment to determine the amount.

I am not a believer in the idea that school is the answer for every problem encountered in society. Nor do I believe that school instruction would likely have stopped a situation like this, where a young child is brutally beaten for a minor reason. However, wouldn't society benefit from high school classes geared toward real life situations people will face, such as parenting classes, classes on how to balance a checkbook, etc?

Sentencing for Mr. Balderas is set for February 22, 2011 whereupon he faces 25 years to life.

Michael Lallana has been charged with six misdemeanor counts stemming from a workplace incident involving a water bottle. It is alleged Mr. Lallana, on two occasions, entered the office of a coworker (known only as Jane Doe) and adulterated her water bottle with bodily fluids.

After the first alleged incident, Jane Doe became ill. After the second incident, Jane Doe took the bottle to a private lab. The test results were positive for semen. Police were later able to link the semen to Mr. Lallana through DNA.

Even though the charges against Mr. Lallana are misdemeanors, the maximum exposure is three years with a possible sex offender registration requirement. It is rare this type of case comes through the criminal justice system. While there appears to be little physical injury, there is emotional injury. The victim in this case feels justifiably violated. The question in this type of case, however, is what is the appropriate penalty assuming Mr. Lallana is guilty? Would this kind of case call for the same amount of jail time that a physical battery, say a punch in the nose, would? It is important to keep one's perspective when representing an individual charged with one of these rarely seen, but often emotional, cases.

Since the beginning of 2010, all Orange County in-custody cases are being heard in the newly established courtroom at the Central Men's Jail known as CJ1. The Central and Harbor Justice Centers first made the transition in October 2009 while the North and West Justice Centers followed in November 2009.

This policy applies to all misdemeanor and felony cases in which the defendant is in-custody, includIng assault and battery, drunk driving, drug offenses, theft, fraud, sex offenses, domestic violence and hit and run, to name but a few. Proceedings not heard in CJ1 include continued arraignments, felony probation violations, arraignments on informations, PC 1000 and PC 1210 violations and Anaheim video arraignments.

The courtroom is fully staffed with a judge, Deputy District Attorneys, clerks and detention release officers. It also provides access to the court proceedings via a public viewing area.

As to whether this new system will ultimately help or hurt the criminal defendant or
assist in more efficient court operations...only time will tell.

To anyone who has traveled in Southern California, traffic jams are a part of everyday life. The traffic jam Northern China is now experiencing, however, dwarfs anything Southern California has ever seen. The traffic jam, nearly 60 miles long and expected to last almost 3 weeks, has had some motorists stuck in their cars for 5 days. The truly amazing thing about this mammoth gridlock is the lack of violent road rage. No assaults, batteries, domestic violence or even theft incidences have been reported. I shudder to think what would have happened had this occurred in L.A.