Criminal and Licensing Sentences

In seeking to defend a criminal case or a professional or occupational license matter, the initial step is to evaluate the degree to which the allegations can be established. There are vastly different standards of proof for the prosecution in criminal and administrative law cases. In that regard, it is far easier for the prosecution attorney in a licensing case to prevail than his/her counterpart in a criminal case, where there must be evidence beyond a reasonable doubt to prevail.

Nonetheless, the role of the defense lawyer, among other things, is to refute, contradict, disprove, deny or otherwise challenge the charges, allegations, inferences and/or conclusions therein that are obvious or not apparent. Similarly, in marginalizing the accusations, facts and circumstances as well as evidence to be produced by the prosecution, there can be a substantial impact upon the outcome or results of the case. In addition, there can be unintended consequences in which the defense lawyer has an opportunity to not only develop and present a defense, but also craft a compelling offense.

I have worked the last forty (40) years as a defense lawyer, previously having worked thru a portion of 1978 as a Deputy Attorney General for the Department of Justice, State of California. Being hired in 1970, I then began prosecuting a very large number of criminal appeals and writing countless Respondent’s Briefs and opposing criminal Writs in every level of Court in California through to the State Supreme Court, and every level of Federal Court including the U.S. Supreme Court. In addition, I prosecuted an infinite number of professional and occupational license cases on behalf of nearly every California Board, Bureau and Department, including the Board of Registered Nursing, Dental Board, Medical Board, Board of Behavioral Sciences, Respiratory Care Board, Board of Pharmacy, Board of Psychology, Board of Chiropractic Examiners, Physical Therapy Board, Board of Accountancy, Board of Optometry, Board of Veterinary Medicine, Board of Professional Engineers, Contractors’ State License Board, Bureau of Automotive Repair, Department of Motor Vehicles and the Department of Health.

In the capacity as a License Defense Attorney, I utilize my background and experience to provide advice and counsel to a countless number of individuals that seek to obtain or already have a professional or occupational license that is subject to denial or revocation, frequently as a result of a criminal case. I like to believe I am skilled in discerning the elements that are most important to evaluating and determining the appropriate outcome given such factors as rehabilitation, remorse and recognition of wrongdoing, which truly are the sin qua non (or most crucial elements) in the defense of both criminal as well as state licensing cases. I have always thought of this as my opportunity to level the playing field.

Judges have the inherent authority to impose and/or modify a sentence, which is required given the objectives of sentencing; to ensure the effective functioning of the court or administrative tribunal and to fairly administer justice; to right an enormous and/or perpetual wrong; at times and without imposing additional negative consequences beyond what has been rendered in an isolated single misdeed and/or in case after case in one’s criminal or disciplinary history. The Judge can look to any of the facts in a case to increase or decrease the sentence, outcome, penalty or result.   A Judge may consider the prior criminal history and the entire factual background of the case and, at times, any unfiled, dismissed or allegations or cases when granting probation, ordering restitution or imposing sentence.  The Judge may determine the existence or non-existence of any fact in aggravation and mitigation.

Here are a few examples of mitigating circumstances: The extent to which the individual has made progress in his or her life and is on the right track; whether there was any drug or alcohol induced behavior, and whether the individual has acknowledged having this disease; and, post-offense rehabilitation. Here, the prosecutor and Court or a state agency, evaluate whether there is compelling evidence of remorse; recognition of wrongdoing; demonstrated regret, guilty conscience, sorrow for the incident(s); and, by committing misdeeds, unprofessional conduct, and other grounds for disciplinary action or one or more crimes has evinced a lack of sufficient grounds to obtain a second chance [in some instances, the individual lacks an appreciation of the previous cases in which a second chance was already provided].

Having a plan in place “yesterday” is not too early; a plan of action can serve to evince the defendant his admitted his past and/or existing crimes or misdeeds, unprofessional conduct, negligence, etc. have resulted from his or her addiction to drugs or alcohol, and demonstrating by unequivocal evidence his or her commitment to address the underlying  substance abuse problem by having previously enrolled in a drug or alcohol treatment program, thereby showing the Court or Administrative Law Judge (s)he has not only accepted responsibility for his or her actions, but has been pro-active in addressing the issue(s) that led to the commission of the crime or misconduct at hand or the past  criminal and/or disciplinary history.

Another element in leveling the playing field is having a support system. Statistics show the more support a person has the better chance (s)he has of remaining law abiding.

In summary, the consequences of a case are obviously attributed, among other things, to the underlying charges, accusations, culpability, background and history; however, the nature and extent of retribution, deterrence and particularly rehabilitation are critical in presenting a defense and offense.

Injured biker dies in Cleveland National Forest

Rescuers reached an injured mountain biker Thursday night in the Cleveland National Forest, but he died before he could be hoisted out of a canyon, authorities said.

A companion of the man used a cellphone to call 911 for help about 6:30 p.m., Cal Fire Capt. Michael Mohler said.

Cal Fire used the phone’s GPS tracking system to find the man in the Noble Canyon area, Mohler said. A sheriff’s helicopter was dispatched, along with a San Diego Fire-Rescue Department helicopter.

Rescuers performed CPR, but the man died at the scene, Mohler said. The nature of his injury was not disclosed.

According to the website MountainBikeBill.com, the Noble Canyon trail is narrow and difficult, with many rocks and tight switchbacks. The upper trailhead can be reached from Sunrise Highway, and the lower trailhead from the Pine Creek picnic area.

San Diego defendant in pit bull attack case dies

A San Diego woman who was found guilty of involuntary manslaughter in connection with a pit bull attack that killed an elderly neighbor has died. The 41-year-old is reported as having suffered from leukemia and a heart condition. She died over the weekend.

Sentencing for the woman was scheduled for April. Her 21-year-old daughter was also convicted of the same charges and was sentenced to four years in prison. The woman also faced four years in prison for the charges.

The pit bull attack took place when the neighbor was in the backyard of her home and the two dogs got into the yard through a gap in the fence which separates the two homes. The neighbor’s injuries were so severe her leg and left arm were amputated. As a result of an infection, the victim’s right arm and leg were also amputated.

 

Cops Bust Meth Operation at “Party House”

An illegal drug operation in San Diego has resulted in the arrest of 16 people. San Diego police discovered large amounts of methamphetamine at a location known as a “party house”, according to one neighbor.

The neighbor reported having seen a cluster of people frequenting the area. Prior to this raid, several other individuals were arrested. Those prior arrests led investigators to this City Heights home. All of the suspects were arrested for possession of illegal drugs, including methamphetamine.

 

4 killed in Orange County shooting spree

A series of shootings across Orange County has left four people, including the gunman, dead. According to this report, the first shooting occurred at Ladera Ranch. It is believed that the shooter killed one person here prior to fleeing in an SUV. The suspect then continued to attempt to carjack at least two vehicles, which resulted in two more deaths. He shot and killed himself shortly after police found him in a stolen vehicle.

 

 

Navy officer murdered in Mission Valley apartment; brother in jail (Sam Spital)

Commentary by San Diego Homicide Defense and Criminal Law Attorney SAM SPITAL:

“On January 29, 2013, the digital edition of CBS Channel 8 news reported the 21 year old brother of the victim who was killed over the past weekend was arrested for first degree murder. Jonathan (Jake) Tenorio was 25 years old and found stabbed to death; he was from Guam and an Officer in the Navy.

Other news sources reported Jonathan was an Ensign who was serving on the San Diego based missile carrier Bunker Hill, was recently married and a U.S. Naval Academy graduate in Annapolis.  The brother who is now a suspect in the killing had just arrived in San Diego from Guam for the World Professional Jiu Jitsu Championship Trials.

While condolences go out to the family members, there was very little information presented by the author of the news piece about the victim. The story causes one to have mixed feelings in that it strains credulity to believe there could be any justifiable motive and/or possible explanation for a family killing, particularly that involving young, adult siblings. This shocking news, however, tends to point out the escalating life challenges, anxiety and stress that often underlie the increased number of crimes in what otherwise can be considered quiet neighborhoods that in the past have had few homicides if any.

The criminal defense lawyer will likely retain an experienced forensic team as well as private investigators to gather the facts to be in a position to better strategize the steps it will take in the criminal case.”

–Sam Spital

 

Senate Considers Restructuring Postal Service with Losses and Soaring Debt

There is a proposal for the postage to increase again, beginning January 26, 2014. This raises the continuing debate over how to overhaul the USPS so that it can become and remain profitable. If adopted, the cost of a first class stamp will go from 46 cents to 49 cents.The proposed legislation has several steps, including that it would modify the health benefits and pension of postal workers as well as to discontinue service on Saturdays.

Although internet email and other means of online communication have grown enormously, everyone is aware that first class mail has decreased at the same time. Those who are optimistic that the Postal Service will eventually become profitable, among other things, point to the continuing surge in the Postal Service’s delivery of packages as e-commece has escalated. On the other hand, there are many who compare Fed Ex and UPS as examples of how private enterprise should be the model for the Postal Service and not rely upon taxpayers to offset its mounting debt. Some individuals believe revenue from advertising by the USPS, such as on the side and back of the postal trucks, would help increase revenue as in the case of municipal buses.

 

 

 

La Mesa resident prevails in illegal search case (Sam Spital)

Commentary by San Diego Criminal Defense Lawyer Sam Spital:

“The North County News on December 25, 2012 published this article regarding a three Judge panel of the U.S. Circuit Court of Appeals, for the 9th Circuit that held a police officer cannot gain entrance to a person’s property or home in pursuit of a possible misdemeanor suspect without first obtaining permission or obtaining a search warrant. To do otherwise, the panel of the Court ruled is a violation of the Fourth Amendment of the U.S. Constitution that prohibits unlawful searches and seizures. The historical exceptions in the law allow the police to enter private property when in ‘hot pursuit’ of a fleeing suspect believed to have just committed a serious felony, the possible destruction of evidence and/or when the police or the public are in imminent danger.

The underlying facts are that the La Mesa Police were called because of a fight on a neighborhood street in this community that is adjacent to the City of San Diego. However, when the police arrived, there was no fight in progress and three individuals were walking away in the opposite direction of the police. An officer yelled ‘Police’ but one of the individuals did not stop and walked inside a gated fence surrounding a nearby home. The officer reportedly kicked in the gate and it struck a woman who was standing on the inside. The force knocked her to the ground and she sustained a concussion, was unconscious and then taken by ambulance to a local hospital for surgery. She sued the officer and the City of La Mesa for $500,000, but the case was dismissed by the U.S. District Court. When the particular suspect was caught he did not possess any weapons and there reportedly was not sufficient evidence a crime had taken place or was ongoing. Accordingly, the panel of the Court held there was no imminent danger to the officer or anyone else and, therefore, ordered the case be reinstated. The next step is for the full 9th Circuit Court to review the matter and if that produces an unsatisfactory opinion the case can be appealed to the U.S. Supreme Court; otherwise, it will be sent back for a trial on the merits.”

–Sam Spital

Trial ordered for man accused of killing mother, mutilating body, over financial support (Sam Spital)

Commentary by Sam Spital, San Diego Criminal Defense Lawyer:

“On November 19, 2012, a 31 year old son used a baseball bat, hammer or other blunt object to inflict 75 wounds in the beating death of his 60 year old mother who resided in the  North County community of Solana Beach as reported by the CBS Channel 8 online news. Now that the Preliminary Hearing in the San Diego Superior Court was concluded, the son will stand trial for the crime of murder for financial gain and murder with special circumstances (torture), which took place the day after his mother went to Los Angeles where he lived to buy a car for him but thereafter refused to continue providing financial support. It was also reported the defendant cut up parts of her body and placed them in a refrigerator.

The Defense Attorney argued her client was schizophrenic and insane, but the Judge refused to find a nexus between the defendant’s mental illness and the murder. Some will argue the mutilation and brutal killing by a son of his mother deserves no mercy, while others will point to the failure of our mental health system to provide safe guards to prevent this horrific murder.

The writer did not indicate whether previous warning signs or symptoms had ever led to a 72 hour hold in a psychiatric hospital or previous treatment for the defendant’s very serious mental disorder. However, Defense Counsel did identify an email the son wrote to his mother in which he said ’It’s no joke mom, I’m insane,’ and she then said to the Court “this is just crazy.’ It is clear that society has a far greater part to play in educating the public to take responsibility, intervene, and utilize the psychiatric treatment facilities in place &/or seek care through the County Mental Health Services. Perhaps not every criminal offense associated with mental illness can be prevented, but certainly there is help that is available and can be provided to those that suffer these disorders, and support to their families as well.”

 

Want to Sue Metro? Too Bad, Maryland Court Rule (Sam Spital)

COMMENTARY BY PERSONAL INJURY LAWYER SAM SPITAL:

“In the DCist daily online news, it was reported on November 8, 2012, the Court of Appeals of Maryland, the highest court in the state, reversed jury awards in the lower courts and , therefore, held persons who are injured as a result of a slip and fall at the Metrorail station cannot sue the Washington Metropolitan Area Transit Authority for what might be labeled violations of the standard operating procedures (negligence in the maintenance and/or cleaning of the grounds).The basis for the high court’s ruling was the 11th Amendment of the U.S. Constitution that gives sovereignty to states.

The claim of immunity does not preclude other lawsuits, such as vehicular accidents.”

 

 

 

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