Monday, May 20, 2013

People v. Lopez (Cal. Ct. App. - May 20, 2013)

I have a couple of reactions to the underlying facts of this case.  So I thought others might be interested in those facts as well:

"Respondent [Sergio Jose Lopez], a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena Zavala. Zavala stated as follows: During an argument with respondent the previous day, she asked him to move out. Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with respondent, and he 'let go.' Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her 'if they were okay.' Zavala responded that 'they were not okay.' Respondent 'pulled her head out of her elbows where she was crying and brandished a silver handgun revolver in his right hand.' Respondent said, 'I told you if you were ever going to leave me, I will shoot you and shoot myself.' Respondent inserted a single bullet into the revolver's cylinder. He cocked the revolver and put the muzzle against his temple. Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at her and then at himself. When respondent pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and mattress. Zavala said that she was not going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told respondent that she was going to take a break. Respondent replied, '[Y]ou're not going anywhere.' Zavala felt 'an object hit her in the buttocks.' Respondent had thrown a candle at her. Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw her onto the bed. For several minutes, he hit her with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said that her children were going to be home soon from school.

Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched the vehicle and found a revolver that was registered to respondent. The revolver's cylinder contained one expended cartridge and no live rounds. Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found underneath the hole in the sheet. Scheller saw 'an impact mark on the wood of the headboard.'"

The rest of the facts are about what you'd expect.  Criminal charges for assault with a firearm, injury on a cohabitant, negligent discharge of a firearm, etc.  Restraining order issued that bars Lopez from further assaulting or contacting the victim, etc.  The usual stuff.

But here are some things that might surprise you.  Or at least that surprised me:

(1)  Remember that Lopez is an attorney.  Surely he was disbarred -- or at least suspended -- for all of this, right?  Especially since he'd only been admitted to the California Bar around three years before these offenses.  We care seriously about domestic violence, about firearm offenses, about an attorney who allegedly lacks impulse control, etc.  No way a guy like this gets to keep his license, right?

Wrong.  Lopez is still an active, practicing member of the California Bar.  Specializing in, ironically, criminal law and family law.

(2)  You'd think that Lopez's criminal prosecution would be a slam dunk.  They find the gun and the bullet hole.  Good witness testimony.  To be sure, it's a classic he-said/she said dispute, but that's lots of domestic violence cases.  Seemed to me like there's no reason the state couldn't win this one.

I was wrong again.  The jury outright acquits Lopez on the assault, false imprisonment and negligent discharge of a firearm counts.  It hung on the inflicting corporal injury on a cohabitant count, which the prosecutor then dismissed.  Those are the biggie counts, and are the one most relevant to the central facts.

The jury finds Lopez guilty essentially only on ancillary counts:  one count of attempting to dissuade a witness (the victim) from testifying, and one count of violating the restraining order.  The latter is only a misdemeanor, and as to the former, the trial court grants a new trial, holding that this verdict was against the weight of the evidence.  "Thirteenth juror" theory stuff.

Which means that Lopez essentially just gets time served and -- after the Court of Appeal's (correct) ruling that the new trial order on the dissuasion count isn't a double jeopardy bar, a potential second trial on that one.

The guy could have done much, much worse.  Indeed, I'm at a loss to explain why the jury came out the way it did.  The Court of Appeal's opinion includes a lot about the facts on the prosecution's side, but nothing about Lopez's defense.  So hard to assess why the case came out the way it did.

Point (2) may be linked to Point (1).  Maybe Lopez is still a lawyer because he got off of the most serious counts.  Though now that his conviction is (essentially) final on the restraining order violation I wouldn't bet on him remaining an attorney for long.  Even if he beats the dissuading witness count on retrial (or has the trial judge dismiss it).

(3)  Third surprise:  I didn't know that just hanging out with a potential witness in a hotel, hoping that they thereby avoid a subpoena, was a felony.  My baseline here was always that people were free to avoid subpoenas as long as they did so legally.  No requirement that I answer the door, for example, if I fear it's a process server.

I think that's the case, anyway.  But there's apparently a distinction people who "help" someone not answer the door; that's a crime.  Even if there are no threats and the third party truly is only advancing the internal desires of the would-be witness.  I knew that professional responsibility rules for lawyers sometimes draw a related line, but had no idea that the criminal law did something similar.  Good to know, and at some later point, I might even think about this issue in more detail.  (For now, I'm just happy to be introduced to the concept.  And I agree with the Court of Appeal that if that is indeed the law, the evidence here was not legally insufficient, and that a reasonable jury could find that Lopez was not just "hanging out in a hotel room with his girlfriend" but was instead helping her avoid a subpoena so she didn't have to testify against him at his preliminary hearing.)

(4)  Final point.  If you ever doubt that there's such a thing as BWS (Battered Women's Syndrome), reread this case.  Look at what the victim does on Lopez's behalf even after she's "free" and able to escape his psychological clutches.  That someone doesn't leave an alleged batterer doesn't mean that there wasn't battery.  It may not make rational sense, but people aren't uniformly rational animals.

Case in point.