SAN FRANCISCO — A San Francisco judge reduced a felony vandalism charge to a misdemeanor despite opposition from the prosecution, after the defense cited the accused’s apparent mental health episode on the day of his arrest and his subsequent progress in reentry.
The accused is charged with one count of felony vandalism, with damages totaling $2,400.
On Aug. 5 in Department 20 of the San Francisco Hall of Justice, Deputy District Attorney Max Draskovich called Officer Charles Schwartz to testify about the day of the accused’s arrest.
Schwartz said he responded to a call for service involving “threats and report of battery” at the Soma Park Inn in San Francisco. When Schwartz arrived at the scene, he spoke with a 911 caller who told him that an individual on the second floor was “causing a disturbance … throwing things off the balcony.”
Schwartz then went to the second floor, where he observed a “white male standing on the second floor balcony” who was “yelling, appeared to be agitated and kind of pacing.”
“For my safety, I decided to detain him,” Schwartz said, testifying that the accused “started to back away from me” and that he had “used force to get him in handcuffs safely.”
Draskovich then asked Schwartz what he had seen in the hotel room.
According to Schwartz, the property was “destroyed.” He noted that he saw that the “bed and headboard were moved around and the refrigerator was damaged.”
Upon a second assessment of the scene, Schwartz said he also saw a “broken mirror and damaged TV.”
Draskovich then asked Schwartz about the estimated cost of the damage. Schwartz said that after he spoke to the manager, the estimated cost was $2,400.
During cross-examination, certified law student Thelo Coleman, supervised by Deputy Public Defender Deborah Awolope, asked Schwartz whether, when he spoke with the assistant manager and a friend of the assistant manager, either of them saw the accused committing the vandalism.
Schwartz said the assistant manager did not see the accused commit the vandalism. He also said the friend “never saw” the vandalism either but “saw [the accused] throw the [window] screen off the balcony.”
Coleman then asked about Schwartz’s interaction with the accused.
Schwartz confirmed that when he arrived at the hotel, the accused yelled down from the balcony to the officer, “I’ve been calling you.”
Coleman then asked Schwartz whether he recalled the accused saying, “I called the police, why are you doing this,” while the accused was being detained.
Schwartz said he did recall the accused saying that.
Coleman then asked whether Schwartz recalled the accused saying, “I called 911 because I’m in fear of my safety.” After reviewing his body-worn camera footage, Schwartz testified that he did recall the accused saying that.
After detaining the accused, Schwartz asked his partner, Officer Goodman, to ask the accused the 5150 questions. Schwartz clarified to the court that 5150 questions are mental health questions used to determine whether an individual is a danger to themselves or others.
Coleman asked Schwartz whether 5150 questions were asked of everyone who is detained, to which Schwartz said the questions are asked when officers believe an individual is experiencing a mental health episode.
Schwartz said he “recalls [the accused] called [911] numerous times” when asked by Coleman whether he was aware that the accused had called 911 five times before the officer arrived.
According to Coleman, the accused said, “I smell gas,” “They are trying to gas me,” “They are trying to kill me,” and that he was “getting gang-stalked and harassed.”
Coleman then asked Schwartz why he did not investigate the claims the accused was making. Schwartz said that he “didn’t investigate because [the accused was] having a mental health episode.”
Judge John Echeverria then excused Schwartz and began hearing arguments from the defense and prosecution.
Coleman requested a motion under Penal Code section 17(b) to reduce the felony vandalism charge to a misdemeanor. Echeverria said there was “sufficient evidence already” to rule on the 17(b) motion but allowed the defense to make its case.
Echeverria also noted the accused’s limited criminal history, stating that there had been no new convictions in more than five years.
Coleman explained that the circumstances were mitigating because the accused “called the police multiple times” and “genuinely believed he was in danger.”
The accused had a “sincerity of belief of danger” and believed “that he was a victim of something,” according to Coleman.
Coleman highlighted the accused’s successful reentry efforts and the “strides he made” to better his life. He noted that the accused is employed, has received positive reports from Assertive Case Management, or ACM, and attends therapy.
Draskovich then raised the accused’s criminal history, explaining that the accused had a prior misdemeanor vandalism charge in 2010, two federal firearm offenses and four vandalism charges when he was a minor. He argued that the accused was a “risk to public safety” and could potentially reoffend.
Draskovich also pointed out that the estimated cost of the damage was “six times the amount for felony vandalism” before objecting to the 17(b) motion.
Echeverria said he considered the case’s “nature and circumstances” troubling with regard to a 17(b) motion.
However, Echeverria acknowledged that the accused’s criminal history did not include any violent offenses, as well as the accused’s positive ACM progress and “contributions to the community.”
“This is a hiccup. What happened is a step backward,” Echeverria said before granting the 17(b) motion, reducing the accused’s felony charge to misdemeanor vandalism.
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