Santa Clara

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.”

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.

Santa Clara Mandatory Domestic Violence Arrest Policy (CA Penal Code 273.5)

California Penal Code section836(d) allows an arrest by an officer of a  crime that does not take place in their presence if:

  1. The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
  2. The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

While this section could, in theory apply to any crime committed, law enforcement agencies will, in fact, make an arrest in virtually every domestic violence case.  The most common domestic violence arrest in Santa Clara is for violation of penal code section 273.5 or 243e.  However, any crime which is made against a “domestic partner” will trigger an immediate arrest under this section. 

According  to a manual published in 2014, (DOMESTIC VIOLENCE PROTOCOL FOR LAW ENFORCEMENT), any Santa Clara Agency must make an arrest if called in to a domestic violence investigation whether they believe charges will be filed or not.  The following agencies are obligated under this protocol.



The protocol makes a “Pro Arrest policy” in domestic violence incidents and DEMANDS that an arrest be made.  Further, in circumstances of “mutual combat”, the officers must determine who the “primary aggressor” is and arrest that person. 

The manual (link below) describes the various crimes that may be considered “domestic Violence” thus triggering mandated arrest upon a probable cause determination.  These are:

  • 136.1 – Intimidating or dissuading a witness
  • 148 – Resisting arrest
  • 166 – Violation of a court order – typically criminal court order
  • 187 – Murder
  • 207 – Kidnapping
  • 236/237 – False imprisonment
  • 236.1 – Human Trafficking
  • 240 – Assault
  • 243 (a) – Battery
  • 243 (e) – Battery – Spousal/cohabitant/parent of suspect’s child/former spouse/fiancée/fiancé/dating and former dating relationship abuse
  • 243 (d) – Battery with serious bodily injury
  • 243.25 – Battery of an elder or dependent adult, who knew or should have known that the victim is an elder or dependent adult
  • 245(a)(1) – Assault with a deadly weapon
  • 245(a)(4) – Assault by means of force likely to produce great bodily injury
  • 246(a) – Shooting at an inhabited dwelling
  • 261.5 – Unlawful sexual intercourse
  • 262 – Spousal rape, eliminates the reporting and corroboration 10 requirements. Now consistent with P.C. 261
  • 270.6 – Leaving California with the intent to avoid paying spousal support, after having notice that a court has made a temporary or permanent order
  • 273.5 – Abuse of spouse, former spouse, cohabitant, former cohabitant, parent of suspect’s child, fiancé, current or previous dating relationship
  • 273.6 – Violation of a protective order (Cross ref to CCP 527.85 pg 8) Typically family law or civil protective orders 20. 273a – Child abuse / endangerment
  • 368 – Crimes against elder or dependent adults
  • 417 – Brandishing a weapon
  • 418 – Forcible entry into the home of another
  • 422 – Criminal threats
  • 591 – Malicious destruction of a telephone line
  • 591.5 – Unlawful removal, damage of wireless communication device, or obstructing use of such device to summon law enforcement
  • 594 – Vandalism
  • 597a – Cruelty to Animals
  • 603 – Forcible entry with damage to property
  • 646.9 – Stalking
  • 653m (a) – Obscene or threatening calls or electronic contacts
  • 653m (b) – Making repeated, annoying telephone calls or electronic contacts.
  • 653m (e) – 653m (a) and (b) are violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by these subdivisions.
  • 29825 – Restrained person possess or attempt to purchase firearm
  • 25400 – Possession of a concealed firearm
  • 18250 – Confiscation of firearms (Authority for seizure).
  • 25850(a) – Possession of a loaded firearm
  • 653.2 – Electronically distributing, publishing, e-mailing, or making available for download, personal identifying information of an electronic message of a harassing nature, about another person, with the intent to place the person in reasonable fear for his or her safety, or his or her immediate family’s safety, and for the purpose of imminently causing the person unwanted physical contact, injury or harassment by a third party.
  • 528.5m – Knowingly and without consent, credibly impersonating another actual person through or on an Internet Web site or by other electronic means, for purposes of harming, intimidating, threatening, or defrauding another person.
  • 664 – Attempt of any of the above


A full copy of the manual can be seen here:


Two Criminal Trials for The Price of One – Budgetary Concerns and Criminal Justice in Santa Clara

Two Criminal Trials for The Price of One – Budgetary Concerns and Criminal Justice in Santa Clara

Santa Clara District Attorney Jeff Rosen’s analysis of the two-jury criminal trials in the Mercury news lacks merit.  To begin with, Criminal trials are difficult and require a constant focus that is, at times, difficult with one jury.  The idea that the criminal justice system can and should save resources by grouping defendants together and having two or more juries hear parts of the testimony presented is absurd.  While the rules allow for one of the juries to be removed in the event that they are not to hear some of the testimony, it is difficult for counsel and defendant to keep track of all of the evidence and this confusion will, inevitably, lead to mistrials and costly appeals.  The idea that we accommodate a single jury for a single case because we “prefer the comfort of the familiar” is profoundly disingenuous.  We accommodate criminal defendants because it is a sacred part of American democracy.  That no citizen should be convicted unless proven guilty beyond a reasonable doubt. 

DA Office Found Arrest Disparities in Santa Clara County

The Santa Clara County District Attorney’s Office found disparities in the percentages of Latino and Black individuals charged with misdemeanors and felonies. These findings confirm anecdotal impressions and data from the San Jose police department.

Disparities were found across all charges beginning with the following points of encounter: car stops, 911 calls, in person street encounters, results of police investigations and resisting a police officer.

This final category reveals a disproportion that is both notable and troubling. The proportion of people charged with resisting arrest (CA Penal Code 148) were 50% Latino and 14% Black. Latinos make up 26% of the county’s population, Blacks make up 3%.

“Resisting an officer” is a subjective determination. Frequently, those charged believe that they are in fact the victims of rough treatment by police officers.  Concerns regarding resisting an officer charges that follow a use of force by police officers are being voiced by San Jose’s Independent Police Auditor, many attorneys, individual residents and community advocates.

It is important to point out that these numbers were not caused by people coming into Santa Clara County from other areas, as the same disparities were revealed when the data was limited to Santa Clara County residents charged with a crime. The DA’s report also shows whites, Asians and Pacific Islanders are underrepresented in the data when it comes to felony and misdemeanor prosecutions.

While the study does not try to identify why these results exist, it is very important to note that the questions are being raised and asked at the District Attorney level.

Santa Clara County Clerk Strike

The superior Court Professional Employees Association has threatened to mount a strike starting August 15, 2016.  In fact, on August 1, 2016, 140 clerks called in to the  court to say they would be  late to work.  The strikers are demanding better pay as they can’t keep up with the cost of living in Santa Clara county.  Should the planned strike come to be, criminal defendants should expect delays in arraignments, bail hearings  and other crucial tasks before the court.  As such, our  criminal defense attorneys are watching this  unfortunate development and making adjustments to our  schedule.  More will be revealed.