Vanguard Court Watch: DA Attempts to Take Back Dismissed Charge, Importance of the Right to Counsel

By David M. Greenwald

On Monday morning, I was covering a routine hearing in the misdemeanor courtroom of Judge Samuel McAdam, when I stumbled on a case of a young woman who was representing herself in a matter involving driving on a suspended license, a misdemeanor, and a speeding ticket, an infraction.

This year we have celebrated the 50^th anniversary of Gideon v. Wainwright, the right to counsel, and I have read a number of horror stories from around the country, from a period deprived of the effective right to counsel.  That has not happened in this county, with an effective duel system of public defense, but the case yesterday morning exemplifies why this is important.

To his credit, Judge McAdam on several occasions informed the woman that she had the right to be represented by counsel and to have the public defender’s office appointed to her case.  She declined initially, stating that she was told (apparently by someone at DMV) that she didn’t need one because if she got her license, the misdemeanor would be dropped.

Judge McAdam’s clerk verified that she now had a valid license and the Deputy DA in this case, Brandon Finn, stated that in the interest of justice they would drop the misdemeanor charge.

Judge McAdam then asked the woman if she wanted to pay the speeding fine (it was a few hundred dollars) or if she wanted to contest the speeding ticket, which was her right.  The young lady asserted she wanted to challenge the speeding ticket, and the judge and clerk stumbled for the next five minutes figuring out where to send the case, what date she wanted, etc.

Just as the judge was about to close the matter, Deputy DA Finn suddenly spoke up that the DA was only willing to drop the misdemeanor charge if the woman pled to the speeding ticket.  Why he allowed the exercise to go on for as long as he did, no one really understands.

Suddenly the judge was telling the woman that the deal she thought was in place wasn’t there and that she would be charged with the misdemeanor if she wished to contest the speeding ticket.  The woman now became distraught and began crying.

Judge McAdam, recognizing that the woman was in distress, asked her if she thought she needed an attorney, and now she was scared and asked to speak with counsel and he appointed Deputy Public Defender Emily Fisher to represent her.

Ms. Fisher asked for time to confer with the woman, obtained the court file, and asked for a recess.  While Judge McAdam was correct in calling for an attorney at this point, he had failed to check with the DA during the five-minute period that they were trying to schedule the lady in another court, and failed to hold the DA accountable for failing to speak out in clarifying that this was a package deal.

In short, the DA seemed to be able to dismiss the count without any stipulation, and Judge McAdam allowed him to take it back.

Following a break, the woman waived her right to counsel and took the deal.  She pled no contest to the speeding ticket and this time, Deputy DA Finn agreed to dismiss the single misdemeanor count of driving on a suspended license.

This was a fairly simple case, but it illustrates that, even in simple cases, the right to counsel is paramount. Had the young woman had an attorney, it would have either been clear that this was a plea agreement or, when the DA attempted to pull back the offer, the lawyer would have been able to fight it.

Contributing to the problem was that the courtroom was extremely busy and there was only one DA and essentially two public defenders handling a full docket of cases.  So, while Ms. Fisher was able to step in at an important point to ensure the woman’s rights were not violated, she only entered the discussion at the last moment.

Defense Contests Theft Charges at Wal-Mart

By Ibrahim Baig

Deputy District Attorney Kyle Hasapes, representing the People, has brought charges of second-degree burglary and petty theft against Anatoliy Mirza. Deputy Public Defender Heather Hopkins represents Mr. Mirza.

The court expects this trial to be a short one, as the only evidence available is one witness and some video surveillance. Whether Mr. Mirza will take the stand will be seen tomorrow.

Michael Fuentes, now a manager of Asset Protection at Walmart in Lodi, used to work as an associate Asset Protection at the Walmart in West Sacramento.

Fuentes stated he was trained on observing suspicious behaviors. He listed some examples of suspicious behaviors, like taking an item without regard to its price, looking left and right, swiftly moving through the store, etc.

The People showed five different footages of video surveillance Fuentes compiled on Mirza. Fuentes described what happened in each video file.

The first file shows Mirza entering the store with his hands in his pockets and empty-handed, as well. Each video file has a date stamp on it. Fuentes identified the man in the video as the defendant, Mr. Mirza.

Fuentes first observed Mirza around 4:35 p.m. on January 21, 2012. He testified he saw Mirza quickly grab an item without regard to what it was. Then Mirza pulled out a Walmart bag and put the items into the bag. Fuentes observed Mirza some distance away between boxes and furniture.

Mirza then walked to customer service to return the items he put into the bag. Mr. Hasapes stated in his opening that Mirza did make a lawful purchase earlier that day. After that, as the People allege, Mirza returned items to the store with his receipt. In fact, the People have copies of Mirza’s receipt and refund slip. However, the items he returned were not the ones he bought. He returned to the store later to pluck the same items and “return” these items.

From thirty-five feet away, Fuentes observed Mirza commit a fraudulent return. Fuentes claimed his view was not obstructed. The video footage showed Mirza return these items. Mirza was also wearing a hat and sunglasses inside the store. Fuentes commented that wearing these items is considered suspicious as it goes to concealing the identity of the person.

At this point, Fuentes did not make contact with Mirza. Fuentes wanted to continue observing Mirza to see if he would do anything else.

Another video file showed Mirza making a full loop of the store before settling in the electronic section.  There the defendant talked to some people but these individuals did not obstruct Fuentes’s view. Because Mirza had just committed fraud, Fuentes found it suspicious when Mirza picked up a high-priced item.

Fuentes described what the defendant did afterwards. He looks to his left and then to the right to see who was looking. Mirza also looked behind him and then made a motion with his left hand into his pocket. The video footage confirmed what Fuentes described.

The defendant then walked quickly around the store. Fuentes claimed he did not lose sight of him but the defendant was wearing unique articles of clothing: a sports hat, a tan jacket, and sunglasses. Fuentes added that no one wears sunglasses inside the store.

There was also video footage of when Fuentes apprehended Mirza.

The defendant was heading out toward the exit. Fuentes ran after him. He said to Mirza he was aware of some fraudulent activity and asked Mirza to come with him to the office.

He testified that the defendant seemed reluctant and denied the fraud. He reported that Mirza told him he bought the items and returned them.

Initially, the defendant was noncompliant but when Fuentes said he would notify the West Sacramento police, Mirza then cooperated with Fuentes.

The last video file shows Mirza sitting on a bench for some time before a police officer arrived. At this point, Fuentes was writing a report. He had a partner sitting nearby Mirza. Fuentes stated his partner was to act as a witness. At some point the officer arrived.

Once everyone else in the room took their eyes off Mirza, Fuentes stated Mirza would start making motions to remove items from his person. Indeed, the video surveillance shows Mirza making such motions. Fuentes stated packaging could now be seen in the video that was not present before, although this was difficult for me to see.

Fuentes’s partner noticed what Mirza was doing and showed the items to Fuentes. Fuentes identified the items as merchandise from the store. The officer arrested Mirza.

On cross, Fuentes admitted some events were omitted in his report. Fuentes’s discussion with customer service was not in his report. On the stand, Fuentes said he spoke with customer service to verify what Mirza did.

Fuentes testified Mirza seemed confused and hesitant when Fuentes first made contact with him. The report simply states Mirza cooperated with Fuentes. Fuentes later clarified in court that at some point Mirza became compliant.

His report also does not say if he showed the video to the police officer. He did not remember if the officer saw the video.

It was not until he saw the power converter in the office that Fuentes went back through video surveillance and noticed Mirza stealing the power converter in the electronics section of the store. By this time, the report was finished.

Fuentes did add to his report once his partner and the officer found other items Mirza attempted to discard. Fuentes did not think to go through his whole report again and make necessary changes.

There was video footage Fuentes did not burn onto a CD because he did not think it was pertinent to the theft.

Tomorrow the jury will hear closing arguments. Perhaps the jury will also hear from Anatoliy Mirza. As the defense holds from her opening statement, this case is more about miscommunication than theft. After all, a Russian translator is assisting Mirza in understanding what is happening in court.

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