San Francisco – My court watching duties on Thursday in San Francisco took me into Department 9. It’s an old courtroom, looks like something out of the last century at least. Normally you see the bustling of attorneys scurrying in and out, a few defendants waiting for their cases to be called and maybe a few in custody.
Most of the cases are being set for preliminary hearing and a number of scheduled preliminary hearings are re-scheduled. That’s the normal order of things.
But sitting in there on Thursday, something unusual was happening. Maybe it was the retired judge Donna Little calling some of the defendants “a retard,” but all of a sudden I realized I should simply start writing down what was happening. In a courtroom with no eyes, no cameras, and only a court reporter with half of the most interesting conversation being “off the record,” there are witnesses to what was taking place this day and what was taking place, quite frankly, was not right.
I learned a little about Donna Little. She’s a retired judge who had worked in San Francisco and now gets paid to fill in. One of the attorneys I caught in the hall described her as “a piece of work.” In 2012, she retired from the bench after 21 years. Now she gets paid to take spot assignments like this one.
She was first appointed to the Municipal Court by Governor George Deukmejian in 1991 and became its presiding judge in 1997.
In one case, the People told the judge that they were not ready to proceed. Apparently one of the officers whose testimony they needed was on vacation. This was no good for a continuance, so the judge gave the prosecutor a choice – “you can either dismiss the charges or proceed on one of the charges.”
One of the charges could have been proved by the officer who was present. When the prosecutor attempted to stall for time, Judge Little told her she was not going to get away with stalling for time.
Ultimately, the prosecutor chose to dismiss. Of course, this isn’t as good as you might think for the defendant, since all the prosecutor did was refile under a stipulation from the defense under Penal Code section 1387.2.
Around 9:30 or so, the judge began calling cases and, when defendants were not there, she began issuing bench warrants.
The case of Mr. Appleby caught our attention. Mr. Appleby was not present, but his attorney, Deputy Public Defender Crystal Carpino, was there.
After Judge Little issued the bench warrant, she got into a shouting match with Assistant DA Gonzalez.
“You’re charging him with child endangerment for leaving his daughter in the car,” she shouted to the departing attorney.
The judge interceded and Ms. Carpino shouted to the judge that the “DA is charging something she can’t prove.”
“That’s not good,” the judge said, still off the record.
“But they are going to put him into custody to force a plea,” she said.
The Judge told her to get him in and she would consider recalling the warrant.
Another case got called. Judge Little was told that yet another officer is out of state. The DA attempted to get it continued for good cause.
“That’s not good cause,” Judge Little said.
Once again the case gets dismissed but refiled under 1387.2
At this point the public defender complains that this was the second time the DA wasn’t ready to go and they were ready. She complained that her client is in custody waiting for the DA to get its witnesses in order.
But Judge Little isn’t interested. “He allegedly committed a crime, so I don’t feel sorry for him,” she snapped.
Key part of that, of course, is “alleged” to have committed a crime. That strange notion of innocent until proven guilty and being held in custody while the DA fumbles the case seems lost on the judge.
Another attorney, Mr. Harrison, got into it with the judge after she informed him that his client had been issued a bench warrant.
“It’s not fair to issue a bench warrant when the lawyer is not here,” Mr. Harrison again told the judge.
“He’s supposed to be here at nine,” the judge had stated earlier. “I’ll give him till 11.”
The judge asked why he was late, and it was explained that he is coming from Oakland and has transportation issues.
When told that she would hold the warrant, he said, “That’s fair.”
The judge said the only reason she was being so lenient is that she knew Mr. Harrison and that he would raise hell if she were too tough.
Meanwhile, Ms. Carpino returned with her client, Mr. Appleby.
“I will not add anything to calendar,” Judge Little said.
Ms. Carpino protested that she told her that if she brought her client in, the bench warrant would be recalled. Judge Little relented and heard the matter, dismissed the two felony charges and left a misdemeanor charge, Count 3, in place.
I moved over to Department 11 and caught the end of a preliminary hearing. The hearing was defended by a law student supervised by a public defender.
In their summation they argued that the man, who allegedly stole property from a car, should have his charges reduced to a misdemeanor. She argued that the man had only one prior criminal conviction, it was five years ago and was a non-violent misdemeanor.
There was evidence presented that the doors were unlocked, which would reduce a charge of breaking and entering into the vehicle.
Moreover, he complied with officers, there were no weapons, no damage or restitution, as the items were recovered.
Meanwhile, there was a motion to suppress evidence as she argued that the officer did not have reasonable suspicion to stop the man on the streets – there was no match for the identity, he was not black or Latino (he appeared Filipino), and being the only person on the street was not probable cause to stop him.
Moreover, they did a search of him when there was no reason to perform a Terry search – as there was not reasonable suspicion to believe he might be armed.
Mr. Chang, the Assistant DA, argued that the stop was lawful because he was the only one on the street, the theft had just occurred, and therefore based on totality of the circumstances the search should have been lawful.
He argued that there was at least some evidence that the car was locked. Officer Chan testified that the witness said he locks the door all the time, every night. He said it is possible that it was not locked, but this was not enough to invalidate a holding order.
He did acknowledge it was questionable and debatable whether a jury would convict based on that, however.
The judge quickly denied the motion to suppress. She ruled that there was enough with his presence on the street to warrant further investigation and probable cause for the arrest.
She then denied the 17(b) motion to reduce the charges as moot and ruled that there was not enough to hold the defendant to answer on whether the car was locked. She dismissed charges 3 and 4, which the prosecutor had already indicated should be dropped, and that left only the second count of stolen property, a misdemeanor.
“The conduct is not felony conduct,” the judge stated.
—David M. Greenwald reporting