My View: Why is Yolo Leading the Way in Per Capita Trials? Look No Further than this Burglary Case


Back in September, in advance of a budget item on the public defender’s office, Yolo County put out some rather remarkable statistics – statistics that the Vanguard has actually been tracking for some time.

The data presented from the 2014-15 year showed that Yolo County conducted more trials than each of the seven counties historically benchmarked against, in Yolo County salary comparison studies.

But not only that, Yolo County conducted more jury trials than counties with larger populations in absolute terms.  Yolo County had 81 felony and 80 misdemeanor trials in 2014-15 compared to 68 from the next largest county, Stanislaus, which has more than twice Yolo County’s population and more than each of Alameda, Fresno, Marin, Monterey, San Mateo, Santa Barbara, Sonoma, Stanislaus and Tulare.

Adjusting for population, Yolo County had the highest jury trial rate in the state, more than counties like Contra Costa,  Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Francisco, and Santa Clara.  In fact, Yolo County’s rate was more than twice the next highest county – Kern.  Yolo had 75 trials per hundred thousand, Kern had 35.

But numbers are sometimes just abstractions.

A recent burglary trial perfectly illustrates why Yolo County has this problem.  I will argue, as I have, that this is an issue of overcharging and unwillingness for the DA to offer reasonable offers pre-trial.

In an article earlier this week, court watch intern Kelsey Landon writes about the case of Nicholas Berends, who faced two counts of burglary for stealing and selling his roommates’ PlayStations.

Jury Hangs, Defendant Pleads to Misdemeanor Theft Charges

For the defense, they don’t dispute that Mr. Berends stole the PlayStations – the problem is that, under Proposition 47, petty theft with a value less than $800 is considered a misdemeanor and the DA is doing contortions to get this into a first degree felony burglary charge.

As Public Defender Martha Sequeira put it – entering different rooms in a house is not entering a dwelling unlawfully unless the DA is arguing that those rooms represent actual separate dwelling places.

This is clearly not how the law was intended to read.  What the law on burglary sought to punish was those who broke into an inhabited dwelling and then committed a crime such as theft.  In this
case, all the guy did was steal and he should be held accountable for the theft, but it should be charged as theft.

Controversial Deputy DA Frits van der Hoek was the prosecuting attorney here.  As you will recall, Mr. van der Hoek is the former San Jose State police officer involved in a controversial officer involved shooting.

Now he is clearly doing some mental gymnastics to get this to a felony.

Mr. van der Hoek, in his rebuttal closing argument, argued that the laws and facts were not on the defense’s side.  The deputy DA claimed that, even if those rooms were not separate dwellings, Mr. Berends still committed at least one count of burglary because he violated a room within a building that was not his.

This basically left the decision in the hands of the jury and the jury, as it turned out, did not outright acquit Mr. Berends, but instead hung.  Ten of the 12 jurors were ready to acquit but two held out for guilt.

With the jury unable to reach a verdict, the prosecution, realizing that they were in a no-win situation, settled the case for… two misdemeanor petty theft charges.  Exactly what they should have charged this case as in the first place.

Instead, the DA’s office charged two counts of first degree burglary, apparently one for each room.  I’m told that it was originally a single count, but Mr. van der Hoek added a second charge for the second room on the day of the preliminary hearing.

Mr. Berends is 21 years old, and he had no criminal history.  He spent 93 days in jail and never waived time.

Based on the eventual plea agreement, the case that should have resolved early on, since the evidence of the theft was overwhelming, went all the way to trial.  Took up four days of the jurors’ time.  Required a number of hours of prosecution and defense work.  And then resolved just as it should have resolved from the beginning – as a misdemeanor case.

This is a waste of time and resources – and for what?

Want to understand why our trial rate is so high?  That’s it, in a nutshell.  Yolo County has the highest per capita trial rate in the state, and it is primarily, in my view, because of prosecution decisions that are patently unreasonable like this one.

This case illustrates why Yolo County leads the way in per capita trials even though, as we have pointed out, it has a crime rate in the middle tier in California.  And the other problem is that, while this overcharged case did not work out for the prosecution, sometimes they do.  Yolo County is in the top five in the state in per capita incarceration rate.

—David M. Greenwald reporting

Budget Data Shows Public Defender’s Office Under-Resourced; Disproportionate Yolo County Charging

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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18 thoughts on “My View: Why is Yolo Leading the Way in Per Capita Trials? Look No Further than this Burglary Case”

  1. Tia Will

    then resolved just as it should have resolved from the beginning – as a misdemeanor case.”

    I agree that this in and of itself is a waste of taxpayer/juror time and money. I would like to address a second reason for not pursuing felony charges for non violent and non repetitive infractions. This defendant is 21 without priors. Charging this as a felony will lead to life long implications which have the potential to hold him back socially and professionally for the rest of his life. Is it really in the best interest of these individuals, our community or justice to potentially destroy the opportunities of a 21 year old for a situation in which the victim can be made entirely whole by replacement of possessions by the defendant ?

    I think it is time for a new DA due to the repetitive nature of overcharging.

  2. Jeff M

    If local residents would stop stealing we would have fewer court cases and fewer jury trials.  Stealing is illegal, immoral, wrong and those willing to do it once demonstrate their propensity to do it over and over again.  The benefit of less lenient prosecuting of the crime of theft is that it results in less theft either because those that steal know of the risk of stronger punishment, or because they have a felony record and risk even greater penalties if they do it again.

    I wonder where the moral compass gets broken where people decide theft of other’s property is something they can do?  Maybe this is a result of them hearing from their social justice advocates that, in addition to demanding more lenient punishment for the crime of theft, it is right and moral for the government to keep taking more from those that have to give to those that don’t.

    1. David Greenwald Post author

      But shouldn’t they be charged with the crime they actually did? I mean we went through a whole trial and the jury basically threw out the charges and it ended up going the way it should have gone in the first place.

      1. Jeff M

        Possibly the outcome was influenced by the relatively high proportion of Davis residents that tend to participate in Yolo County trials?  That has been my experience for the juries I have participated in… the Davis participants tend to be more lenient on average.

        In my experience, the Woodland residents that participated in those trials tended to be less tolerant… possibly because they had been more often personally impacted by theft in their neighborhoods.

        There was one jury trial, a DUI case, were I was disappointed that the DA had prosecuted.  After the trial where the jury found the defendant non-guilty, I told him that I thought that this one wasted tax-payer money.  He wasn’t happy with my comment and said that if this suspect does it again and hurts or kills someone, he can at least sleep at night knowing he did all he could within the scope of the law.

        I think many in law enforcement share a view with many local residents of zero tolerance for crime and are motivated to exploit the full extent of the law to punish people that knowingly and purposely break it.   I don’t think that is a negative tendency… I don’t want people in law enforcement to act as judge and jury in decided what they should prosecute and how the law should apply.  Juries are imperfect, so at least we should count on consistency in decision for what is put before a jury.

        1. David Greenwald

          I think the outcome was created by the fact that the DA had to take liberties to meet the definition of burglary here in a case where the theft was done by the roommate.  Given the defendant’s lack of a criminal record, a felony seemed steep for stealing a PlayStation.

    2. Tia Will


      With your deterrence claim, you are making the case that young criminals, whether thieves, drug sellers or murderers actually think through the crime, chances of detection, and consequences of detection logically before acting. From intimate knowledge of our prison system, I do not believe this is often the case. The only person that is deterred from stealing while in prison is the prisoner and that only due to physical confinement. Brain studies of adolescents also seem to be starting to demonstrate that adolescents in particular do not have full development of the parts of the brain that govern self restraint and higher cognitive functions.

      Prison is an excellent place to learn how to effectively commit more serious crimes which will be especially appealing if the individual is now barred from much legitimate employment. I know that to many, harsh punishment sounds like the best strategy. However, if you compare rates of violent crime, imprisonment patterns, recidivism in areas which have high incarceration rates and long sentences with those that do not, I think you might find that it is not.


      1. Jeff M

        I get your point, but I think it paints with much too broad a brush related to theft.  My children, like all children, grew up impulsive until their frontal-lobes better developed in their 20s, but they would never consider stealing from someone because of the moral line it would cross.

        Drug use is another issue.  The morality of harming self is generally a self-harm consideration.  I don’t support crimilization of drug use.  I, however, would support significantly higher penalties for illegal drug sales… because it, like theft, harms others.

  3. Tia Will

    I think many in law enforcement share a view with many local residents of zero tolerance for crime and are motivated to exploit the full extent of the law to punish people that knowingly and purposely break it.”

    I believe that it is more productive to consider crimes based on their actual effect on society. Violent crimes, or crimes that have a potential for death or serious physical harm ( such as DUI) are instances in which there is a true societal protective function for incarceration. When the harm is purely monetary and can easily be restored in full, I do not believe that there is any just call for incarceration especially on a first offense. I believe that a monetary and emotional restorative process would be far better for all involved including victim, perp and society in these cases.

    1. Jeff M

      “When the harm is purely monetary and can easily be restored in full”

      Generally not.  Neighbor had his house broken into and heirloom jewelry from mother and grandmother was stolen.  The destruction of sense of security.  I have cars broken into several times and things have been stolen that meant more to me than their monetary value… and the time and hassle it then requires to cancel cards, get windows fixed, etc…. that time cannot be recovered.

      I think your attitude here about theft exactly illustrates my point above.

      “It is only stuff”   “It is only money”  “it is only material possessions”  “Insurance will pay for it”

      This is probably more common thinking in a city like Davis… and probably answers David’s question about why the case got thrown out to a lesser charge… not that the DA got it wrong.

      1. Tia Will


        My comment was regard to this case. I doubt that the roommate was so attached to his gaming device that it would not have been easily replaced. I am making no claim with regard to other cases as I believe that each must be judged on its own merits. What you have done is to move the marker and then extrapolate my statement to another hypothetical situation for which doubtless the restorative process would need to be different.

    2. Howard P

      Yet Tia… I suspect you have “Zero-Tolerance” for some transgressions and/or crimes.  Some would call them (the ones I’m thinking of) the equivalent of “theft/robbery”.

      Some would consider “theft/robbery” as a violation of ‘their personal space’…

      1. Tia Will


        My honest answer to that is it depends on their relationship. My ex husband and I shared the same living space. We moved in and out of all of the rooms at will. And yet, I was deeply hurt when he chose to  take some irreplaceable objects known to be of emotional value to me and threw them away. Theft? Yes. Violation of my personal space? Not really. I do not know, because we have not been informed of whether or not these roommates had free access to each others rooms. I have had roommates who I would not have minded entering my room freely and even borrowing my possessions without my express approval in my absence ,and others whom I would not have wanted to enter my room uninvited.

        1. Howard P

          Was thinking of another “taking”… but let’s go with your thoughts…

          Fair response, and you relate an extremely forgiving attitude… good for you.

          You are correct that we neither know, nor have any right to know all the details of the case in question.  But when my bike was stolen from my porch when I was 11, I was thinking of family finances, and it was only when I was 17, earning money, that I bought another bike, for college… as Dad was passing, I found out that my parents would have replaced my bike… for years, I was “wounded”… but the jerk who stole the bike was never caught, never made restitution.  Since he was a minor as well, yeah, I get where you could see that he had no culpability.  Might have been on a “dare”… no harm, no foul, right?

          Definitely not a felony, to be sure, but sounds like I should have just “sucked it up”… OK… you’re a better person than I am, Tia Will [apologies for paraphrasing Rudyard Kipling]

  4. Tia Will


    they would never consider stealing from someone because of the moral line it would cross.”

    Honest question. Do you suppose you would know if they had committed a crime of minor theft? Let’s say even a piece of candy or a comic book from a store? My mother would have said exactly what you did. But on what was essentially a dare, when I was significantly younger than this man, I did exactly that. I was almost immediately filled with regret because of the moral line I had crossed, but in the moment, it did not stop me from this very minor transgression. My criminal career was extremely brief, but what if I had been caught and overcharged ?  Is it worth it to society to not have trained a doctor because of a thoughtless, easily restituted minor transgression ?


    1. Jeff M

      All crime done by a minor should be considered a mistake and learning opportunity.  But 18 and older, the line comes down.  Too bad, so sad.

      I also agree with some restorative justice to give young people involved in minor crimes a second chance.

      1. Howard P

        All crime done by a minor should be considered a mistake and learning opportunity. 

        Can’t agree on “all crime”… but good point, with my nuance…

        Had the Columbine kids been arrested, I just can’t get to the place where murdering/wounding their classmates could be considered a “mistake and a learning opportunity”.  Just can’t “get there”.  Never will.

        But, as to that incident, just wish those who do the murder-suicide thing, reverse the the order… lots less grief for more families…

      2. Tia Will


        Respectfully, I disagree at a strict line drawn in the sand at age 18 for adulthood. We have a number of different lines in the sand. We have had differing minimal ages for driving, for consumption of alcohol, for marriage, for voting, for volunteering for the military, and are quite fluid in when an adolescent can be charged as an adult. None of these ages have been derived on the basis of any evidence based information taking into account the clearly different levels of maturity that can be seen at the same chronologic age and for the most part have been politically driven.

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