Law Offices of Erik Steven Johnson

247 N. Third Street, San Jose, CA 95112

Call Today for a Free Consultation | Se Habla Espanol

408-246-3004

Recent blog posts

Misdemeanor brandishing charges have been brought against a San Mateo County Sheriff's Deputy. The Mercury News reports that the District Attorney decided to charge the deputy with misdemeanor brandishing after a confrontation between the deputy and a custodian in a Redwood City courtroom. The courtroom was closed to the public at the time.

Brandishing is a serious allegation for any law enforcement officer. According to witnesses the deputy and custodian got into an argument regarding the recent murder of a South Carolina police officer. The custodian alleges that the deputy unholstered his side-arm in a threatening manner. The Mercury reports that the deputy informed the District Attorney that he was merely inspecting his firearm. Nevertheless the District Attorney made the decision to file charges against him.

Gun brandishing charges such as the one this deputy is facing (Penal Code section 417(a)(2)) carriers a term of up to one year in county jail. Different than many other misdemeanors, this charge carries a mandatory minimum term of three months, and does not qualify for jail alternatives, such as community service or work release. A conviction may also ban the deputy from owning or possessing a firearm.

...

A man accused of assault & battery against a pizza delivery man pleaded no contest this past Wednesday. The San Mateo County Superior Court accepted the plea from the man, who calls himself the “Beloved Reaper,” who has also been convicted of misdemeanor criminal threats. No motive or explanation for the attack was ever been explained.

Assault & battery are crimes that can be misdemeanors or felonies. In fact assault and battery are two crimes and may be charged separately. Simple battery is the harmful or offensive touching of another person and can be found in Penal Code section 242. Assault is the lesser included offense of battery and is defined as the unlawful intent to commit a harmful or offensive touching. Stated more simply, assault is the attempt to commit a battery.

According to the Mercury News, the Beloved Reaper, also known as Richard Montgomery Ines, is accused of throwing a paint can at the victim followed by threats that he was going to kill him. When the victim exited his vehicle the defendant pulled out a BB gun and repeated his desire to kill the delivery man. The Mercury also reports that the defendant threatened other motorists and passers-by. He kicked a police officer while being arrested in an attempt to resist.

...

Locally known street vendor Francisco Juarez was fatally struck by a DUI driver, this past weekend. Twenty-five year old Marco Chamale was arrested Saturday for driving under the influence and manslaughter charges for causing the accident that resulted in the untimely and tragic death of forty-year old Juarez. Juarez was selling fruit with his wife, who was also struck by Chamale, at the corner of South White and Mt. Vista in East San Jose.

A DUI that leads to a death of someone is typically charged as gross vehicular manslaughter while intoxicated. California Penal Code section 191.5 governs this crime and calls for a punishment of four to ten years in California State Prison. (See Penal Code section 191.5(a).)

In this case, the Mercury News reports that the defendant rear ended another vehicle, then jumped a curb hitting both Francisco and his wife. The car continued on and slammed into a third vehicle, in what appears to be an attempt to escape. Chamale was arrested at the scene and remains in custody with bail set at $250,000. There are no reports of his blood-alcohol level or BAC. A street-side memorial has been set-up by family and friends of Francisco marking the spot where the accident took place.

...

Posted on in DUI

People accused of a DUI have a right to a hearing with the Department of Motor Vehicles (DMV) to challenge the automatic suspension of their driving privileges. These are administrative hearings, independent and separate from the criminal case. The hearing officer is responsible for determining several issues: 1) whether there was probable cause for the vehicle stop, 2) whether the motorist was advised of the implied consent laws and submitted to a chemical test, 3) whether the motorist was driving with a blood alcohol content of .08% and 4) Whether there are any defenses. However, one hearing officer took her responsibilities to a new level, by accepting bribes from lawyers in order to set the license suspensions aside.

DUI suspensions are taken very seriously by the DMV. However, Hearing Officer Alva Benavidez recently pleaded guilty in San Diego Federal Court, admitting that she set aside DUI suspensions in exchange for bribes. She pleaded to one count of conspiracy to accept bribes.

Among the items she received in order to look the other way were designer purses, sunglasses and cash, mainly from certain, and so far un-named attorneys. According the UT San Diego News, Benavidez admitted accepting bribes from six attorneys amounting to approximately $5,000 in money and merchandise. Benavidez worked for the DMV since 2000, but recently quit her job in the wake of the bribery investigation. She has not yet been sentenced, but faces up to five years in federal prison. She is set to be sentenced on April 20, 2015.

A jury convicted a man of DUI related vehicular manslaughter in a tragic but now infamous Pebble Beach case. According to KSBW.com news, thirty-two year old Stuart Elder was found guilty of causing the death of Sharon Daly and Linda Larone while driving his own vehicle while intoxicated. Elder's girlfriend, a passenger in his car, was seriously injured in the accident.

The jury concluded that Elder was driving his vehicle with a blood alcohol content near or at .17% and that he caused the accident that resulted in the death of two people and the injury of a third. They heard testimony that the defendant had been drinking wine earlier in the day at the annual Pebble Beach Food and Wine Festival. Officers testified that he operated his Cadillac Escalade at three times the posted speed limit when he lost control, crossed into oncoming traffic and collided with the victim's vehicle.

DUI related vehicular manslaughter requires a finding that the defendant was driving impaired as a result of alcohol intoxication and that the defendant committed a law violation or an omission of a duty while driving. In this case the defendant was driving with a blood alcohol content at .17% (more than twice the per se legal limit) and was driving in excessive of the basic speed law.

...

A thirty five year old doctor in Merced County was arrested for certain sex crimes, including the installation of a camera in a bathroom and possession of child pornography. The pediatrician was placed on administrative leave in the wake of the arrest and remains out on bail.

The sex crimes that the doctor has allegedly committed are violations of Penal Code section 647(j) and section 311.11. Section 647(j), sometimes referred to as the “Peeping Tom” statute is the prohibition of installing concealed cameras in order to secretly record the intimate body parts of another person. Section 311.11 is the possession of pornographic images of minors under the age of 18.

According to the Merced Sun Star, the pediatrician is alleged to have installed a small camera inside a unisex bathroom, hidden in a small flower arrangement. After the arrest police searched the doctor's home and discovered sexual images of children. It is not known whether the images collected from the recording device contained images of children as well.

...

Two men have been charged with vehicular manslaughter in a street racing case that resulted in the death of a young woman jogging on the same road. Manuel Maldonado was arraigned this past Wednesday and has been accused of being one of two drivers engaged the race. The other defendant has not yet been brought to court. Maldonado remains in custody at $100,000 bail and the court denied his attorney's request to release him on his own recognizance, or OR.

Vehicular Manslaughter with gross negligence is a serious felony and strike offense. The prison range for this crime is a term in state prison for two, four or six years and a revocation of driving privileges. In some circumstances similarly situated defendants can be charged with murder if the conduct was done with malice, or with an “abandoned and malignant heart.” (See Penal Code sections 192 and 188).

The Mercury News reports that the victim's family was present at the arraignment and could be heard demanding justice and shouting at the defendant. The paper further reports that the two young men did not know each other before the race and have no prior criminal history.

...

San Mateo County charged a man with felony DUI last year after he slammed his car into a SamTrans bus, injuring five people. He pleaded “open” meaning the court could have sentenced him to two years state prison, which prosecutors were asking for. However, earlier today the court sentenced the man to one year county jail, five years probation and the other mandatory terms and conditions including the DUI Offender Class.

Felony DUI can be charged on a first offense if the drunk driving resulted in bodily injury. Vehicle Code section 23153 states that if a person drives a motor vehicle while intoxicated and commits an unlawful act while driving that results in the injury of a person, he may be charged with felony DUI. A fourth offense for driving under the influence may also be charged as a felony.

The penalties for a felony DUI are stiff: two, three or four years in state prison (or up to six years if the victim suffered great bodily injury), three to five years of formal probation, the 9 to 18-month DUI offender class and a five year revocation of driving privileges.

...

A 19 year old Stanford student and collegiate swimmer has been accused of sex crimes including rape and sexual assault. The student, who has been asked to leave the university, is being charged with the sexual penetration of an intoxicated person, under Penal Code section 289(d), among other related charges. According to the Mercury News the assault was witnessed by two bicyclists who prevented the suspect's escape.

Sex crimes such as the sexual penetration of an unconscious or intoxicated person is a serious felony crime and strike offense under California's Three Strikes Law. Penal Code section 289(d) or (e) carries a prison term range of three, six or eight years and is a mandatory sex registration offense.

The Mercury News reports that the student attended a party over this past weekend where he met the victim. Sometime after midnight he was found on top of the woman by two men riding bicycles who detained him until police arrived. It is further reported that the woman was allegedly too intoxicated to consent or resist. It is unclear whether the suspect was intoxicated at the time

...

Posted on in DUI

Arrests for driving under the influence, or DUI, fell by ten percent in Santa Clara County. For the 2014 Christmas season, the county reports forty-six (46) fewer DUI arrests made at check points and other “saturation patrols.” 468 arrests were made as a part of DUI enforcement patrols in 2013 as opposed to 422 such arrests last year during the Christmas and New Year holiday season. This number does not reflect the total number of DUI arrests made in the county for the year, but just those arrests made as a part of DUI checkpoints and other “Avoid the 13” operations in the month of December.

It is illegal to operate a motor vehicle in California while under the influence of alcohol, drugs or a combination of both. It is also per se illegal to operate a motor vehicle with a blood alcohol content of .08% or above. (See Vehicle Code section 23152(a) and (b).)

The consequences of a DUI conviction as a first offense is 48 hours to six months in jail, entry into the First Offender Program, three years probation, and a six month license suspension. Each subsequent conviction raises the stakes for the driver including more jail time and longer suspension periods. For example, a conviction of second DUI will result in a one year suspension. A fourth DUI may be charged as a felony and may result in a state prison sentence.

...

A man was arrested for indecent exposure, a registrable sex crime, in Palo Alto. The man, who is on active probation in Santa Clara County and San Mateo County was taken into custody on December 26, 2014 for exposing his genitals to at least two people in downtown Palo Alto.

The indecent exposure claimed two unsuspecting victims. The criminal suspect is alleged to have exposed his genitals to a man while standing in front of a business on Bryant Street. While doing so he then accosted a woman trying to enter the building. The Mercury News reports that the suspect wagged his appendage at the woman as she passed him and entered into the building. She locked the door and called the police.

The defendant's alleged conduct, if proven, constitutes a violation of Penal Code section 314.1. To prove a violation a prosecutor must show that the defendant willfully exposed himself, in the presence of another person, which was done for the defendant's sexual arousal or for the arousal of another person. A conviction may also be obtained if the exposure was done to offend another person.

...

The District Attorney has announced a sex crimes investigation of Forty-Niner defensive lineman Ray McDonald. The Mercury News is reporting that a woman recently alleged that McDonald sexually assaulted her, prompting investigators to make an inquiry.

These sex crimes allegations come on the heels of a very public domestic violence investigation, where McDonald was accused of abusing his fiancé. The District Attorney's Office declined to file, saying there was insufficient evidence to prosecute McDonald. His fiancé was pregnant at the time but declined to cooperate with investigators.

However, the Mercury reports that the Forty Niners have terminated McDonald's contract and released him from the team immediately. The Forty Niner management cited the lineman's “poor decisions,” and the new allegations of sexual assault. This comes just as the Forty Niners were ousted from the play offs this year after their recent loss to the Seahawks over the weekend.

...

Posted on in Theft

A burglary suspect has been arrested by San Jose police and is being held without bail in the Santa Clara County Jail. 19-year old Jacob Breschi is alleged to have burglarized thirteen to twenty homes, particularly in south San Jose and the Evergreen neighborhoods. According to the Mercury News, Evergreen has seen a dramatic increase in home invasions in the last year or so.

Burglary of a home residence is a felony and a strike offense. (See Penal Code section 459). First degree burglary is the entering of an inhabited dwelling (a house, apartment, trailer coach, houseboat etc) with the intent to commit a felony. The entering element of this crime may be satisfied if some part of the suspect enters the dwelling, even if minor and only into the outer boundary of the home. A theft need not be intended; rather the intent to commit any felony amounts to the completion of the crime.

A violation of one count of Penal Code section 459 as a first offense carriers a state prison term range of two, four or six years.

...

Posted on in DUI

A driver suspected of a DUI (driving under the influence) may now face a felony vehicular manslaughter charge in San Mateo County. The criminal defendant is accused of driving into an 84-year old woman, while backing out of a Walgreens drive thru.

A DUI may amount to manslaughter if a person died as a result of the drunk driving. On a second or subsequent allegation of DUI, the defendant may be charged with murder if the driving resulted in the death of another person.

On November 14, 2014 the 21 year old defendant was making her way through a local Walgreens drive-thru, when she decided to back her vehicle out. As a result she ran into a pedestrian, 84 year old Nina Falk. The victim later succumbed to her injuries and passed away at a local trauma center. The defendant immediately fled the scene but was later discovered by police. She was arrested on suspicion of felony hit-and-run and felony DUI. The District Attorney is expected to amend the charge to include vehicular manslaughter in the wake of the victim's death.

...

The San Jose police officer accused of sex crimes, including rape of a woman he was supposed to protect, is facing new allegations of another sexual assault. Officer Geoffrey Graves is facing a civil lawsuit in which the victim claims he assaulted another woman just months before the incident that led to his arrest.

The new sex crimes allegation comes as the officer faces criminal charges of rape and sexual battery that could send him to the state penitentiary for eight years.

According to the Mercury News the City of San Jose and the Police Department are challenging the civil lawsuit as being untimely. The City Attorney had claimed that the victim missed the six month deadline to file for a financial claim, which is a prerequisite to filing the lawsuit. However, the deadline was waived by the court. The suit is asking the court to award monetary damages, punitive damages, restitution and attorney fees.

...

Assault & battery, gun crimes and other felony arrests were made in the wake of the San Francisco Giants historic World Series win on Wednesday. The City was awash in celebrations and mayhem just as soon as pitcher Madison Bumgarner threw the last pitch of the game. Revelers and looters came out to take advantage of the situation.

Besides the assault & battery arrests, people were seen vandalizing cars, throwing firecrackers at police, setting bonfires and committing other misdemeanor and felony acts of destruction. Alcohol is attributed to much of the conduct following the game.

There were also a few but otherwise isolated acts of violence including two shootings and a stabbing. Three police officers were hospitalized for injuries. Most of the mayhem occurred near and around the stadium as people came out from the bars and restaurants. The Mercury News reports that the more violent acts occurred in the Mission District.

...

A Santa Clara resident has been accused of sex crimes against a sixteen year old child. The Mercury News is reporting that the defendant was a social worker for the San Mateo County Family and Child Protective Services and he had been assigned to the victim's case.

The sex crimes that prosecutors are alleging include molestation, oral copulation and unlawful sexual intercourse with a minor. Further reports indicate that the man is also being charged with possession and distribution of child pornography. The defendant is on paid administrative leave for an unrelated matter.

A charge of oral copulation (Penal Code section 288a) carriers a prison term of up to three years. All of the allegations, if admitted to, would mean that the defendant would have to register as a sex offender for the rest of his life (Penal Code section 290).

...

The theft and file sharing of people's private pictures is reportedly a wide spread game among officers of the California Highway Patrol. CHP Officer Sean Harrington has been recently accused of accessing a woman's cell phone and sending her personal and intimate photos from her phone to his own. The file transfer was done while the woman was in custody on suspicion of driving under the influence or DUI.

The theft, however, appears to be a practice among CHP officers, who routinely steal people's private photos and videos and send them to each other. Harrington has admitted that CHP officers confiscate cell phones of women they arrest, search for nude phots and then share the photos among fellow officers. Harrington and his fellow officers have called this practice “a game.”

An investigation into Harrington's phone suggests that this is not the first time he engaged in such criminal conduct. In a separate incident Harrington sent photos of a woman to CHP Officer Hazelwood, while the woman was being x-rayed after a vehicle crash. He followed up with a message to Hazelwood: “Enjoy buddy.”

...

A DUI defendant is accusing an Eastbay California Highway Patrol Officer of stealing explicit and personal photos from her cell phone by emailing or texting them to his own phone. The Mercury News is reporting that Officer Sean Harrington is under investigation after a report that he transferred nude photos of a DUI detainee after accessing her cell phone while booking the woman into county jail.

Investigators indicate that six photos of the woman were found on the officer's phone, after having been sent directly from the woman's phone. The file transfer took place while the woman was in custody who could not have executed the exchange herself. The Mercury reports that Officer Harrington asked for the woman's password in order to access her phone.

Harrington and his partner stopped the woman, who has not been identified for privacy concerns, for a traffic violation. The officers smelled an odor of alcohol emanating from inside the vehicle and a DUI investigation ensued. According to the Mercury her blood alcohol equivalent was .29. Nevertheless, the Contra Costa County District Attorney has dismissed the DUI charge in response to the investigation into Officer Harrington's conduct.

...

Posted on in Theft

A Southbay robbery spree ended recently with the arrests of three suspects in San Jose. The men are suspected in the bank robberies on four separate occasions in San Jose, Campbell and Gilroy and are believed to be members of a criminal street gang based in Salinas, California.

Robbery in general is defined as the taking of the personal property of another, from his person or in his immediate presence, against his will and done by use of force or fear. (California Penal Code section 211). Robberies that are done in concert of two or more people carriers a state prison term range of three, six or nine years.

Bank robbery is and can be a federal offense under 18 USC section 2113. Holding up a bank by means of force or the threat of force may be punishable to a term in federal prison for up to twenty years. The Feds are unforgiving when it comes to violent crimes and present much heavier sentences to criminal defendants.

...
Back to Top