Catch a Fire – Arson and Resistance to Gentrification in Oakland (CA Penal Code 451 & 452)

On July 7, 2017, a fire tore through the Alta-Waverly building, a seven-story, mixed-use building under construction in downtown Oakland. The heat from the fire was so intense, it was picked up on local weather radar and there was significant concern that an industrial crane, which was being used during the construction, might collapse onto adjacent buildings. I could feel it on my drive to the Summit Defense Law office in Downtown Oakland.  The fire destroyed the structure at 2302 Valdez Street, at the corner of 23rd Street, threatening homes and other businesses in the residential-commercial area northwest of Lake Merritt, and displacing more than 700 local residents. The blaze comes less than two months after a very similar fire in Emeryville destroyed an apartment and retail space that was also under construction at the time. The cause of that fire was ultimately determined to be arson. Only hours after the fire was first reported, allegations of arson have already been issued by Oakland City Council, with one member posting to social media platforms that “burning down housing doesn’t help make [Oakland] housing more affordable.” But was the fire at 23rd and Valdez Streets also arson and if so, is it related to a campaign of urban terrorism aimed at preventing a perceived gentrification of Oakland?

A person can be found guilty of arson if he or she “willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” California Penal Code § 451. The penalty for a conviction under this section of the penal code ranges from 16 months to nine years in prison. Aggravated arson, which can be charged if a person is found to have committed more than one act of arson within a ten-year period, carries a penalty of 10 years to life in prison. Even the lesser offense of unlawful or reckless burning under California Penal Code § 452, carries a potential sentence of six months to six years in state prison. And conviction under this section of the statute does not require property or forest land to catch on fire. In fact, simple charring, however slight, will suffice.

Oakland communities have undergone drastic changes over the past several years. United States Census Bureau statistics reported that 14.6 percent of Oakland residents earned an annual income of $30,000 or less. However, real estate statistics collected by agencies including Trulia and Redfin, show that between 2010 and 2014, 28 percent of Oakland residents leaving Oakland earned less than $30,000 annually – nearly double what would normally be expected from a community with the same wage map as Oakland. This trend tends to confirm that low-income people are leaving the city at disproportionately high rates. At the other end of the spectrum, Oakland residents who earned an average of $150,000 or more per year, are leaving the city at a much lower rate than expected. All of which points to cost of living being the biggest factor driving the exodus out of Oakland communities.

Breaking these statistics down to bare numbers, between 2010 and 2014, approximately 104,544 people left Oakland. At least 28 percent of those left for economic reasons, which represents approximately 14,000 people. This number does not take into account the number of people who earned more than $30,000 annually who also left the city for economic reasons, especially considering the fact that the average price of a single-family home in Oakland has now risen to $680,000, which is a 9 percent increase over the last year. The average monthly rent for a one-bedroom apartment in Oakland as of June, 2017 is $2,397, and for a two-bedroom apartment is $3,188. The exodus is not only affecting lower-income residents at a disproportionate level, it is also having a profound affect on African American residents. Since the year 2000, the city has lost 30 percent of its African American population – a concerning trend for a city that once boasted an African American population of more than 47 percent and is the birthplace of the Black Panther Party.

Oakland City Council members are quick to cry copycat with respect to this latest blaze. But arson as a method of combating perceived gentrification is not a new story in the Bay Area. In fact, several fires over the past three years at mixed-use buildings under construction have been attributed to arson, including two fires at the same building in Emeryville in May of this year. The Alta-Waverly building was purported to include 196 “market-rate” apartments and up to 31,500 square feet of retail space, with parking for residents in an underground garage. Oakland Mayor Libby Schaaf lamented the loss of “valuable units” in the “middle of a housing crisis.” But are these units really all that valuable to low- and middle-income residents? Keeping in mind that “market rate” for a two-bedroom apartment in Oakland runs well above $3,000 per month, these “market-rate” apartments are well out of reach for the more than 14,000 Oakland residents who are currently being displaced for financial reasons.

Arson is a serious offense, and serial arsonists face stiff penalties. But a pattern of arson like the fires affecting these mixed-use buildings in areas where gentrification may not be an affordable remedy for Oakland’s middle-class residents is something that Oakland city government needs to examine more closely. Arson may not be the issue here, but lack of affordable housing and forced financial exodus might be.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended arson charges in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.

Santa Clara County’s Collateral Consequences Policy and Avoiding Dual Prosecution (CA Penal Code 242)

Last month’s issue of The National Review featured an article by Pete Hutchison, lambasting Santa Clara County District Attorney Jeffrey Rosen’s “Collateral Consequences” memo and practice[1]. Hutchison seems to attribute all of the woes of most victims to Rosen’s directive to his office to consider the collateral immigration consequences for cases prosecuted by his office involving non-citizen defendants. Hutchinson’s diatribe is misinformed, misdirected and startlingly off-target. Which shouldn’t surprise most readers who have any idea of the roots of The National Review or its general opinion on all issues political, social or judicial.

The National Review is a conservative, quasi-monthly magazine founded by William F. Buckley, Jr. in 1955. Unsurprisingly, the missive aims to present politically conservative ideals in a palatable manner to the general public. Lest we have forgotten, Buckley is also the political commentator and author who deemed the HIV/AIDS epidemic “the special curse of the homosexual” and argued that all AIDS patients be “tattooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.[2]” Needless to say, any opinions printed in or by The National Review should, at the very least, be taken for what they are: skewed vehicles aimed at promoting a widely unpopular viewpoint which has not matured or changed in any significant way since the magazine was founded more than six decades ago.

The article begins by painting a pretty picture of a loving wife, mother and professional who, by the unlucky alignment of the stars, managed to marry “a reprehensible bully and abuser” who subjected her to “the worst kind of mental and physical abuse.” The tone of the article then moves on to righteous indignation at District Attorney Rosen’s “dumbfounding” decision to charge the defendant in that case with what the author calls “offensive touching.” The article then glosses over the criminal court process as a whole, and goes on to lament the fact that the District Attorney assigned to the case seems to have followed his or her job description to the letter: to charge the case appropriately and prosecute it effectively. A decision which ultimately resulted in a conviction.

Clearly, Hutchison does not have an educational or professional background in law, as evidenced by his absence from the ranks of the licensed attorneys in the state of California (or any other state for that matter) as well as his cannon of written works (which are limited to a series of published travel guides.) What Hutchison does not seem to understand, is that “offensive touching” is included in the language of California Penal Code Section 242, and is not in and of itself the title of a criminal act. More specifically, CA PC § 242 is the codification of the crime of battery, and although the title could be misleading, even a cursory examination of the statute reveals that battery does not actually require injury to another person. In fact, even “the slightest touching can be enough to commit battery if it is done in a rude or angry way.” See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 960.  The defendant described in Hutchison’s article was charged with battery, which may very well have been the appropriate charge under the circumstances. Although Hutchison describes the defendant’s actions as “savagely” beating his wife, the only evidence he points to is an article in The Daily Beast, a “news and opinion” website of questionable motives with only a peripheral relationship to the truth. The link to the purported article included in Hutchison’s piece is no longer valid. In reality, there is no evidence presented in Hutchison’s article detailing the severity of the beating, or verifying that there was a beating at all. And without full access to the record of proceedings, Hutchison’s allegations against the defendant in this particular case are reckless and defamatory.

Hutchison goes on to state that “In practice, Rosen’s policy appears to be that possible deportation is worse than the domestic terrorism and savage beatings that women like Ms. Rastogi endure.” However, these statements are unfounded and inflammatory. Again, there is no evidence that Ms. Rastogi endured an act of “domestic terrorism” or a “savage beating.” In addition, Hutchison seems to be suggesting that the District Attorney’s policy is to weigh the rights of the victim against the rights of the defendant and then make a determination as to which is more important. The threat of possible deportation is, in and of itself, terrifying, demoralizing and damaging[3]. To the defendant him- or herself, as well as to his or her spouse, children, parents, co-workers and community.

Hutchison glosses over the effect the threat of deportation might have on a defendant and focuses solely on the rights of the victim, when in reality one might very well be worse than the other – just not the one that Hutchison is suggesting. Hutchison does manage to note that Ms. Rastogi did, at one point, ask the District Attorney’s office not to prosecute her husband. This may seem trivial or even ridiculous to many readers, but it is not an inconsequential act. In the case that Hutchison uses as the focal point for his article, the victim is described as “high-tech star working at the world’s premier technology company.” Clearly, she is not a shrinking violet and she is not an uneducated submissive. She is a professional woman with a burgeoning career. And, therefore, her decision to support her husband despite the marital problems they encountered should be respected and honored. Yes, Ms. Rastogi has rights as a victim of violence, and yes, she should be provided appropriate support and representation. But none of these rights are precluded by the District Attorney’s policy on collateral consequences.

Hutchison also calls District Attorney Rosen’s collateral consequences policy “probably unconstitutional,” but fails to provide any evidence whatsoever to bolster his opinion. As a means of educating Mr. Hutchison, as well as the National Review’s readership as a whole, constitutionality is one of the foundation blocks of our judicial system. There is no evidence (or supporting documentation cited in the article) to support this contention. In fact, declining to consider the collateral consequences – most especially immigration consequences – of a criminal prosecution actually is unconstitutional. Padilla v. Kentucky, 559 U.S. 356. And while Hutchison alleges that District Attorney Rosen’s policy stems from a “misreading” of the decision in Padilla, that is a misinterpretation of the facts as well. No, Padilla does not require criminal defense attorneys to “have knowledge of a highly specialized area of the law.” It merely requires criminal defense attorneys to advise their clients of a potential risk of deportation associated with the charges they are faced with or the plea agreements they are considering. District Attorney Rosen is simply taking this directive one step further, by taking some responsibility for appropriately, fairly and intelligently prosecuting the cases assigned to this office.

Finally, Hutchison throws the race card red herring into the mix by arguing that an African-American, Native American or United States citizen Hispanic defendant in District Attorney Rosen’s county is not afforded the same privileges as a non-citizen defendant. The most obvious error in this argument is that none of the other classes of defendants listed in the article would or could face the same collateral consequences as immigrant defendants, which renders the argument moot. But Hutchison invokes the often misquoted Equal Protection Clause as the basis for his allegation of unconstitutionality. He states that “Equal protection means that there is no justice if two people are charged with a crime and one gets a break because he or she is a non-citizen, while the citizen must face the charge’s full punishment.” Unfortunately and unsurprisingly, Hutchison misunderstands the Equal Protection Clause under the 14th Amendment to the Constitution. In reality, the Equal Protection Clause directs that no state shall deny to any person within its jurisdiction the equal protections of the law. Protection from deportation is one of the most important of these protections and therefore should be afforded at all costs to immigrant defendants.

Hutchison can twist the meaning of the law as much as he wants to. But he can’t change what the statutes or the Constitution actually say, and he can’t attribute false intentions or racial bias to a county policy about which he clearly understands very little.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended assault and battery charges in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.


[1] The National Review, “Dangerous Collateral Consequences in Santa Clara County, California,” May 17, 2017,

[2] The New York Times, “Crucial Steps in Combating the Aids Epidemic; Identify All the Carriers,” March 18, 1986.

[3] Center for American Progress (CAP), “How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities: A View from the Ground.”

San Mateo Embezzlement – Privatizing Criminal Prosecution to Circumvent the Constitution (CA Penal Code 503)

First District Court of Appeals Judge Martin J. Jenkins.

In a decision that rocks the foundation of the U.S Constitution and will likely have far reaching consequences, the First District Court of Appeals ruled that a private law firm’s investigation and cooperation with the District Attorney does not make the materials used in that investigation subject of mandatory disclosure rules and the principles set forth in Brady v. Maryland.


The Seminal case of Brady v. Maryland dictates that the prosecution must disclose any and all exculpatory materials derived in the course of a criminal investigation.  This includes; evidence which proves defendant’s innocence, reduce his sentence, or would allow for impeachment of any witness.  The rule is means to strengthen the corner stone of our criminal justice system.

People v. Shehayed is a San Mateo Embezzlement case (CA Penal Code 503) involving a CEO accused of using company funds to pay personal obligations.  It is clear that a private law firm was retained by the company and worked closely with the San Mateo Office of the District Attorney to investigate and collect evidence against Mr. Shehayed.  Obviously had the District Attorney collected this evidence, it would be subject to the Brady rule and discoverable by the Defense team.  The question raised in this case is; What are defendant’s Brady rights if the materials available to the District Attorney are gathered by a private party such as a law firm.

San Mateo Judge Joseph Scott agreed with the defendant that any exculpatory materials found by the private law firm in investigating this matter should be handed over to the defense.  However, the court of appeals held that the law firm in question was simply a cooperating witness and that therefore the District Attorney was not obligated to turn over any materials known to the Santa Clara District Attorney and which may be necessary for Mr. Shehayed’s defense.



Government actors are subject to some limitation in investigating a criminal case.  These limitations are meant to guarantee against any misconduct and assure a proper defense.  For example, a statement derived in violation of the rules set forth in Miranda v. Arizona, may be excluded from evidence.  The remedy for an improper search is the exclusion of evidence found in that search.

California penal code section  1054.1 outlines the prosecution’s obligations to disclose relevant materials to the defense.  It states, in relevant parts, that the prosecution MUST disclose:

  • “(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
  • (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.”

However, none of these remedies are available if the bad actor is a private entity.  Statements obtained by Loss Prevention in a petty theft case are not subject to Miranda and are admissible against defendant.  Likewise, the fruits of an illegal search are not subject to Fourth Amendment remedies if these are obtained by loss prevention officers as these actors are not under government control.

While this outcome is somewhat justified with regards to a loss prevention officer, the case before the court presents a different set of legal challenges because, in this case, the private investigators worked closely with the District Attorney and helped form a strategy to prosecute the case.

The first circuit’s ruling opens the door to potential abuses and prosecutorial misconduct.  Could a government agency simply ignore the U.S. constitution by relying on private party investigation of criminal cases?  It appears that the court finds this outcome acceptable.

The core values of our criminal justice system such as the burden of proof, the ability to properly cross examine witnesses and the right to evidence which will be presented against a criminal defendant have been shattered by this decision.  Defendant’s trial lawyer will likely appeal this decision.  It would be interesting to see if the California Supreme court takes on this issue.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended hundreds of criminal cases in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.

Criminal Prosecution as Smoke Screen (CA Penal Code 192(b))

Criminal Prosecution as Smoke Screen

On December 2, 2016, a fire broke out in a converted warehouse in Oakland during a music and art show hosted by the managers of an art collective based inside the building. Of the more than 50 people attending the event, 36 were unable to escape the flames and perished in the fire. It was an unprecedented and tragic loss of life that understandably destroyed families and tore a once tight-knit community apart. Six months later, the Alameda County District Attorney has announced that criminal charges have been filed against the man who ran the art collective, and the man who organized the ill-fated event. But is the filing of a 36-count indictment the starting point for a just and fitting resolution, or the vehicle for an obscene miscarriage of justice?

In the state of California, charges of involuntary manslaughter in Oakland involves an act or acts whereby a person kills another person or people unintentionally, either while committing a crime that is not an inherently dangerous felony under the statute, or while committing a lawful act that might produce death without the exercise of due caution and circumspection. CA Penal Code 192(b). A conviction under this statute does not require intent or malice; it merely requires criminal negligence. The basic elements required for a conviction under this section of the penal code are that the person committed an infraction or misdemeanor as specified above, that the crime or act was committed with “criminal negligence” and that the act or acts resulted in another person’s death. Death resulting from the commission of an act that constitutes a felony or death resulting from a “freak accident” do not fall under this section of the penal code.

Criminal Negligence is defined under the penal code as an act that is more than just ordinary carelessness, inattention or poor judgment. Criminal negligence occurs when a person acts in a reckless manner that creates a high risk of death or great bodily injury, that the act demonstrated a disregard for human life or indifference to the consequences, and that a reasonable person would or should have known that the act would create such a risk. The act or acts committed can be deemed to have caused another person’s death if the death was a direct, natural, and probable consequence of the aforementioned act, and that the death would not have occurred had the act not been committed. In short, a person charged with involuntary manslaughter must be found to have realized at some point during the commission of the underlying act that the act itself would likely cause injury or death to another person or people. Accidental deaths – even under circumstances where the accused acted in an ignorant or thoughtless manner – do not constitute involuntary manslaughter under the statue.

Alameda County District Attorney Nancy O’Malley has indicted both Derick Ion Almena and Max Harris (also known as Max Ohr) on 36 counts of involuntary manslaughter under California Penal Code section 192(b). Each count carries a maximum sentence of 4 years, and a maximum fine of $10,000. Almena was the manager of the warehouse and the co-founder of an ad-hoc art collective that provided space for local artists to produce and market their artwork in an area where studio rentals are at a premium and average wages for independent artists at an all-time low. Harris was the promoter of the music event and a familiar face at the art collective, affectionately dubbed The Ghost Ship by those who frequented it. By all accounts, the space was filled with antiques, art installations, photographs, sculptures and dozens of alcoves and warrens dedicated to the production, appreciation and development of artwork of varied mediums. Both men are currently represented by criminal defense attorneys and set to be arraigned at the Rene C. Davidson Courthouse in Oakland on June 8, 2017.

Over a period of approximately two years, Oakland Police and Fire officials, as well as city building inspectors responded to the warehouse space on several dozen calls and complaints, ranging from unpermitted social events to building code violations. At no time during any of those visits, was anyone in or connected to the warehouse space cited, fined or arrested. Complaints to various city officials about the space went unanswered. And the artists’ collective was allowed to remain in operation, without citation or regulation, throughout these investigations. In short, neither Almena nor Harris was ever formally notified by any regulating agency that they were in violation of any legal code in their supervision of the artists’ community operating at The Ghost Ship.

Three weeks after the fire, the lawsuits began. The families of two of the deceased filed civil damages claims against Almena and Harris. The claims also listed various other individuals and agencies as defendants, including Almena’s wife, Micah Allison, the owner of the warehouse, Chor Ng, the City of Oakland, the County of Alameda and Pacific Gas & Electric. Nearly six months later, more than two dozen lawsuits have been filed with Alameda County Superior Court, all of them against roughly the same group of defendants.

The City of Oakland, the County of Alameda and Pacific Gas & Electric have, in comparison to the other named litigants, the deepest pockets of all potential defendants in these lawsuits. The City of Oakland pays an average of 2.5% of its annual budget to settle civil claims filed against the city or its agencies. In 2016, the city budget totaled just over $3 billion, which means that the city paid out approximately $75 million in damages to civil litigants. The County of Alameda boasts an annual budget of nearly twice that of the City of Oakland, with roughly the same portion being allocated in some way to settle civil lawsuits filed against the county. And Pacific Gas & Electric most recently disbursed more than $500 million to settle claims stemming from a pipeline explosion in San Bruno that took the lives of eight people. These three agencies have far more financial resources than do the handful of individuals involved in the operation of the artists’ collective. They are also the agencies that were responsible for investigating, inspecting, and monitoring the conditions and activities at the Ghost Ship warehouse.

All of which begs the question: Is the criminal prosecution of Almena and Harris (which, incidentally is being spearheaded by the County of Alameda, a co-defendant to both Almena and Harris in the civil lawsuits) an actual attempt to exact justice for criminal wrongdoing, or is it a tactical decision aimed at mitigating damages in the civil lawsuits that will likely result in monetary restitution by the city and county? It is not unreasonable to extrapolate from the district attorney’s vigorous prosecution of the two most visible and publicly reviled members of the Ghost Ship community that there may very well be an ulterior motive for the voluminous criminal indictment recently filed by the county. In fact, it seems almost laughably obvious that a definitive victory in the criminal case would give the county, at least, leverage in the wrongful death lawsuits currently wending their way through the civil litigation process. The county has filed a 36-count indictment against Almena and Harris, after the civil lawsuits have been filed against the county, and after several investigations by various state and federal agencies were unable to conclusively pinpoint a cause of the fire. Without a strong evidentiary foundation to support the basic elements of the charges, it appears as if the county is moving forward with a questionable case as a smoke screen to obscure its (and the city’s) own liability in the deaths of three dozen people.

The fire that tore through 1305 31st Avenue in Oakland, California on the night of December 2, 2016 was without doubt tragic, horrific and devastating. It was quite possibly preventable. It was not, however, foreseeable or predictable. The families of those injured and killed in the fire need and deserve closure, but the conviction of two men whose most egregious offenses were acts of arrogance, ignorance and denial will not bring closure to the families or justice to the community. And the dog-and-pony show of a meritless criminal prosecution will only serve to further undermine the integrity of the criminal justice system.

Summit Defense Criminals Attorneys defend involuntary manslaughter charges in Oakland with 6 other Bay Area offices to better serve you.


Voisine v. U.S.: Closing the Loophole (18 U.S.C. § 922(g)(9))

Voisine v. U.S.: Closing the Loophole

The United States Supreme court, in its decision in Voisine et al. v. United States, clarifies and narrows the application of a section of federal law that was codified more than twenty years ago. In its decision, the Court unequivocally states that the primary aim of the majority decision was to “close [a] dangerous loophole” left open by 18 U.S.C. § 922(g)(9) when it was ratified by the Lautenberg Amendment in 1996.

Specific to the issue examined by the Court, 18 U.S.C. § 922(g)(9) makes it illegal for anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm.  The codification of this section of the United States Code was enacted by an amendment of the Federal Gun Control Act of 1968 which expanded on the language of 18 U.S.C. § 921. The crux of the legal issue in Voisine focused on one main question: Does a misdemeanor crime that requires only a showing of recklessness qualify as a misdemeanor crime of domestic violence under federal statutes 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

Factual and Procedural History

The named petitioner in this case, Stephen L. Voisine, was a resident of Kingman, Maine at the time of the precipitating event. In both 2003 and 2005, Voisine was convicted of assaulting a woman with whom he maintained a domestic relationship. Maine Revised Statute 17-A § 207 establishes that a person is guilty of assault if he or she “knowingly, intentionally, or recklessly causes bodily injury or offensive physical contact to another person.” A conviction under that section of the revised statute constitutes a misdemeanor domestic violence assault if the victim is a member of the defendant’s family or household. In 2009, Voisine was reported to the local authorities for shooting a bald eagle in Kingman township. During the subsequent investigation, officers found that Voisine was in possession of a firearm, despite his prior convictions for assault. Voisine was charged with various violations, including a violation of 18 U.S. C. § 922(g)(9).

The co-litigant in Voisine, William Armstrong III, also sustained several misdemeanor convictions for assaulting his wife in 2002 and 2008. Two years after his final conviction for assault, Armstong was arrested after a search of his residence for drugs and drug paraphernalia turned up ammunition that was later tied to several firearms that Armstrong had previously transported to another location. Armstrong was subsequently charged with violating 18 U.S.C. § 922(g)(9).

Both Voisine and Armstrong filed motions with the trial courts to dismiss the charges lodged against them, arguing that the language of the state statute covering misdemeanor domestic violence assault does not constitute misdemeanor domestic violence under the federal statute[1]. The litigants argued that, under Maine’s statute, “recklessness” is sufficient to sustain a conviction of misdemeanor domestic violence, whereas under the federal statute it is not. The litigants argued that because of this discrepancy between the state and federal statutes, they had not, in fact, violated the federal statute under which they were both charged.

The United States District Court for the district of Maine denied the defendants’ motions and the United States Court of Appeals for the First Circuit affirmed on appeal. The defendants petitioned for a writ of certiorari from the United States Supreme Court, which remanded the case due to the 2014 decision in United States v. Castleman, 695 F. 3d 582[2]. On remand, the appellate court again held that Maine’s statute constituted misdemeanor domestic violence under the federal statute.


Decision and Analysis

The Court in Voisine ultimately found that a conviction for misdemeanor domestic violence under a state statute that merely requires “recklessness” does qualify as a conviction for domestic violence under 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). The Court was split 6-2 in its decision, with Justice Elena Kagan delivering the majority decision. The Court held that the relevant text of the statute regarding the use of force does not preclude an interpretation of the statute that includes an act of force carried out with recklessness or with a conscious disregard of the substantial risk of causing harm. The Court additionally found that the legislative history of the statute supports this specific reading, stating that Congress expressly intended for the statute to prevent individuals who had sustained misdemeanor convictions of domestic violence from possessing or transporting firearms specifically because many states’ statutes provide definitions of misdemeanor offenses that only reckless intent. The Court’s reasoning was that, if these alternate definitions of misdemeanor domestic violence were not included in the statutory prohibition, the federal statute would not be an effective enforcement tool in the majority of jurisdictions.

[1] The litigants also challenged that the charges violated their constitutional right to bear arms under District of Columbia v. Heller, 554 U.S. 570, however the crux of the Court’s decision rested with the litigants’ challenge to the federal statute itself.
[1] The Court is Castleman held that a conviction of misdemeanor domestic assault under Tennessee law does constitute a misdemeanor crime of domestic violence under the relevant federal statute because offensive touching satisfied the “physical force” requirement of the federal statute.



Justice Clarence Thomas and Justice Sonya Sotomayor were the two dissenting justices on the panel. Justice Thomas drafted the dissent, in which he argued that the term “use of force” necessarily required intentional conduct to be included under statutory firearm prohibition. Justice Thomas further argued that, the Court has historically interpreted the term “use” to require intentional conduct in order to maintain consistency with the manner in which the term is used in other sections of the statute. Justice Thomas argues that the Court’s decision erroneously combines the concepts of recklessly causing force and recklessly causing harm through the intentional use of force. Because the Maine Revised Statute does include reckless conduct whereas the federal statute does not, any conviction under the state statute should not trigger the statutory ban on firearm possession. Justice Thomas also addressed the Constitutional challenge, arguing that the Court’s decision overreaches and as such is in conflict with the litigants’ second amendment rights.


State Sovereignty and Forced Uniformity

The 50 states that comprise the United States are all separate and sovereign entities. Each maintains its own constitution, government and court systems. Each maintains a legislative body or bodies charged with enacting state statutes, an executive body that is charged with promulgating regulations and statutes, and a judicial body charged with interpreting and enforcing those regulations and statutes. In the large majority of legal issues that come before state courts, that state’s Supreme or Appellate court is the final interpreter of those issues. State appellate courts receive an average of 270,000 cases for review annually. By way of comparison, federal appellate courts receive less than one-quarter of that amount[3].

Diversity in the promulgation and codification of state laws or statutes is one of the mainstays of state sovereignty. Diversity of codes and statues among states is integral to an individual state’s ability to maintain a functional and, hopefully, just court system. The code of each state necessarily reflects democratic sentiment as to what the current law is at the time the law is enacted or amended. And the state court’s interpretation of those laws reflects the legislative intent behind the enactment or amendment.

Unless the issue is one over which the federal government retains exclusive jurisdiction, the interpretation of a section of the state statute should be left up to the state legislature that enacted it, and the state judicial body tasked with enforcing it. States cleave to the idea that they are in control of all aspects of government over which the state itself retains jurisdiction. Even when the federal and state governments diverge on specific issues of law, a modicum of respect and deference is generally observed. Historically, efforts to create a “uniform code” have been largely unsuccessful, with the exception of the Uniform Commercial Code and the Model Penal Code. Uniform acts can only become state law if they are enacted by the state legislature, and the majority of uniform code acts have only ever been considered or adopted by a very limited number of state legislatures.

The Supreme Court of the United States is, among myriad other things, tasked with reviewing legal issues that have not been or cannot be resolved by a state court. A large majority of these issues have wide-reaching implications, or can and will set significant legal precedent. However, in recent years, SCOTUS has come under fire for overstepping its reach and unceremoniously treading on the underskirts of states’ sovereignty. In Bush v. Gore, 531 U.S. 98 (2000), Chief Justice Ruth Bader Ginsburg stated in her scathing decent that, “All respect for the office of the presidency aside, I assumed that the obvious and unadulterated decline of freedom and constitutional sovereignty, not to mention the efforts to curb the power of judicial review, spoke for itself.” Ginsburg was unabashed in her lambasting of the highest court in the nation for what she, and others, have alleged is a clear violation of the role of SCOTUS in its review of cases that necessarily require it to reexamine or interpret the original intent of a state legislature in the amendment or enactment of a code or regulation.

[1] Examining the Work of the State Courts, Court Statistics Project, National Center for State Courts,

In examination of petitions that tread even reluctantly into the territory of re-interpreting the meaning behind any state code or regulation, or the definitions thereunder, SCOTUS has an obligation to each and every state in the nation to give deference to that state legislature’s intent. Re-defining a term or group of terms that underpin any state law is a slippery slope that leads sharply away from state sovereignty and towards a more totalitarian form of governing against which this nation has resisted for centuries.

Allowing SCOTUS to reinvent the legislative history behind any state code or regulation is tantamount to deciding a crucial legal issue by administrative fiat, as opposed to cogent, careful, legal analysis. For the Voisine Court, basing its decision on the idea that the federal statute does not preclude inclusion of a specific act, when it also does not specifically include it, is dangerous territory. Especially when the crux of the Court’s argument rests on a federal judiciary’s re-interpretation of a state legislature’s original intent.

Summit Defense Criminal Attorneys handles domestic violence cases in San Jose, CA and with 6 bay area offices to better serve you.

ICE Arrests at Courthouses

ICE has been making immigration arrests in the hallways of state courthouses recently.  ICE had previously discontinued this tactic after getting bad press about arresting women applying for restraining orders, people paying traffic tickets, and even immigrants trying to get married in Kern County. The practice has resumed, at least in Los Angeles and other parts of the country.

If you see or hear of ICE arrests in SF Bay Area courthouses, please email or call Scott Mossman at 510-835-1115.  He is collecting this information to share with other immigration attorneys.



Summit Defense Criminal Attorneys has 6 bay area offices to better serve you.

New Bay Area scam targeting chat room users with threats of Criminal Prosecution for Child Pornography (CA Penal Code 311)

Since January 2017, Summit Defense Criminal Attorneys has received numerous calls from terrified individuals who describe essentially an identical fact pattern:

After a brief encounter with an another individual in a chat room and an unsolicited sexual photograph, they receive a call from an irate father who claims either an accident or medical treatment for their minor child.  The calls is accompanied with demand for funds and a threat to contact the authorities for sexual contact with a minor or possession of child pornography (CA Penal Code 311).

Naturally, this produces extreme anxiety and several callers have informed us that they have indeed made large payments, only to get additional calls and additional demands for compensation.  This scam relies on two things:

  1. Inability of victim to contact the police for fear of criminal prosecution.
  2. Anxiety produced as the victim is often unable to sort out actual criminal liability.

THIS IS A SCAM.  While the details of the scam may vary slightly, it essentially follows the fact pattern above.  If you find yourself in this situation, Summit Defense Criminal Attorneys can help you ascertain actual potential for criminal liability free of charge.  Under no circumstances, should you concede to demand for payment.

Bay Area Crime Penalties – disproportionate and UNJUST

About ten years ago, I handled a criminal matter in San Jose Superior Court.  It was slightly unusual because it was handled by the Attorney General’s office but otherwise, it was a routine arrested for embezzlement case (CA Penal Code 503).  I had managed to convince the prosecutor to meet me for a cup of coffee to discuss the case and heard perhaps the most difficult statement I have had to digest as a criminal defense lawyer.

The offer in the case (thirteen years in state prison) seems absurd to me given my client’s age and lack of criminal background even conceding the $350,000 embezzlement.  What was really impossible to digest, however, was when the prosecutor routinely admitted that had the case been in Alameda, or San  Francisco, the offer would have been drastically reduced (3-5 years).

I considered a meeting between two similarly situated individuals in state prison who realize their background and crime are identical but one was being released in days while the other had a decade of time left all because she committed a crime in Santa Clara County as opposed to Alameda.

The perverse misery of this conversation has haunted me for years.  How can two counties located 50 miles from each other get “justice” so different?  Can the rate for a crime in Santa Clara really be triple that in Alameda or San Francisco.

Through the years, I have examined various offers in the six bay area counties (Marin, San Francisco, San Mateo, San Jose, Alameda and Contra Costa) and found that across the board, penalties for crimes in Santa Clara, Marin and San Mateo FAR exceed those in Alameda, San Francisco or Contra Costa.


Some Examples:

The starting offer for a DUI in Santa Clara is 12 days of Sheriff work jail alternative. The same applies in San Mateo.  In alameda it is 4.

The offer for a misdemeanor domestic violence in Alameda usually does not require any jail time.  That isn’t true in Santa Clara or San Mateo.

The issue becomes far more drastic in felonies.  Both Santa Clara and San Mateo District Attorney offices routinely require prison or jail time for felony convictions, something that is fairy rare in Alameda.

Through the years, I have learned that the dreaded conversation between two similarly situated people meeting in prison is far too common.  Counties should have some leverage in exacting the price of justice from its citizens.  However, one county offering  13 years in state prison while another county offering 3 is a travesty of justice.

We at Summit Defense Criminal Attorneys will try to collect signatures and put this matter for ballot in the next state wide elections.  This will be a tough fight because the fear mentality that has gripped our society has made the accused an easy target.  But if we don’t try to fix this problem, than we are living a daily injustice.

Santa Clara District Attorney no longer providing criminal pre file case status!

When you are arrested for a DUI in Santa Clara (CA Vehicle Code 23152), you can comfortably assume that the date listed on your citation will be the actual court date.  Criminal attorneys don’t make a habit of checking ahead of time whether the district attorney will file charges or not.

This is not true in other types of cases in which there is a real chances that despite an arrest, the District Attorney will not formally charge the case.  Criminal attorneys will often put significant efforts to convince the District Attorney not to file charges on charges such as Domestic Violence (penal code 273.5, 243e) , theft (penal code 487), resisting arrest (penal code 148), battery (penal code 242) and so on.  The difference between these and a DUI is a human witness that may make the district attorney case less strong and therefore impact a decision to formally charge.

For some reason, the Santa Clara District Attorney’s office has decided to not provide information as to a decision once one is made and the staff is directing individuals to contact the court.  That sounds easy enough!  But there is one HUGE hurdle. The court usually does not know what the filing status is just because a decision has been made.  Something has to be filed for the court to be aware of the case.  Therefore, we now live in a world where you can’t find out whether you have court until the DAY OF court.

This leads to much unnecessary anxiety and despair.

Furthermore, there appears to be no possible justification for the refusal to provide case status.  We are asking the public to join us in pressuring the Santa Clara District Attorney’s office to change this policy.

Please call 408 299-7400 and tell the District Attorney to provide you with your case information because it is their duty.


Arrested for Domestic Violence in the Bay Area?

One of the most common questions Domestic Violence arrests provoke is what is the role of the complaining witness in deciding to or influencing charging and prosecution.


It is well known that a victim of domestic violence does not choose whether charges are brought against his or her significant other. The questions of whether a domestic violence victim have to testify in a domestic violence trial depends on several factors.

You can be sure that the District Attorney will subpoena the victim to appear on the day of trial.


Any individual that does not respond to a subpoena properly served, will be subject to a bench warrant and an Order to show cause as to why that witness did not appear in court. This applies to domestic violence victims. If no good cause is shown for non-appearance, the court will hold the witness in contempt of court.


If the witness appears in court but refuses to testify, California Civil Code section 1219(b) limits the penalties the court can impose on the person. That is, a court can not imprison a victim of domestic violence for contempt of court and can refer the that person to a domestic violence counselor.


Unfortunately, the answer to this question is…. IT DEPENDS. The District Attorney will have to consider the strength of the evidence given the refusal to testify. Factors such as injuries (and photographs of those injuries), witnesses, prior testimony/statement of Complaining witness and defendant’s statement will be evaluated. It may be that the prior statement of the victim of Domestic violence is admissible as an exception to the hearsay rule.

If you or your significant other have been arrested or charged with Domestic Violence, contact Summit Defense Domestic Violence Lawyer for a free consultation. (800) 929-0451