Monday, August 26, 2013

Gerhard Becker Preliminary Hearing, Part VI

 Gerhard Becker and former defense attorney Chad Lewin.

Continued from Becker Preliminary Hearing, Part V....

UPDATE 8/27/13: spelling 
Tuesday, November 27th, 2012
10:10 AM
After attending a pretrial hearing in the Kelly Soo Park case, I head down to the third floor of the Criminal Justice Center to Judge Michael Tynan's courtroom, Dept. 42.  Tynan is in the middle of holding drug court so I take a seat in the gallery.

During a break, there is a very interesting "off the record" conversation --about a newly appointed federal court judge, a kiss on the lips and someone being 'slipped the tongue' --but I won't repeat who said what about whom.

I listen as Judge Tynan hands down rulings with compassion for the defendant's that come before him. "As soon as you said you didn't need Prozac anymore, I knew you were in trouble," the court tells one defendant. "You're a sick man. ... You have diabetes. You need medication; you can't do it on your own."

10:50 AM
Gerhard Becker, defense attorney Donald Re and Becker's former counsel Jay Gottfriedson attorney.  I get the sense that Gottfriedson is also Becker's friend, but I'm not positive.

Re is asked to approach the bench on an ex parte matter.

The next drug court case is called. The defendant has a new charge, possession of a crack pipe.  The defense counsel addresses his client, "You're not even supposed to be around drug users!"

After this case is finished, there is some discussion among the staff in the well that 800 people were placed so far this year.  735 of those were pro bono placements for the court system.   Two new defendants are called out.  The defense states that they made multiple efforts to place these men but the only area that has beds at the moment is the LA Transition Center.  Regarding one defendant, "This guy has nine priors. I'd like to get him into a more structured program."

One of the main problems in trying to help drug and alcohol addicted defendants is finding programs with available beds.

11:10 AM
I note there is a box of chocolate truffles at the corner of the clerk's desk.  Judge Tynan left the bench and raided the chocolates.

11:27 AM
Detective Greg Stearns enters Dept. 42 with a slightly sour expression on his face.  He then rubs his hand over his face.  Maybe he is coming off a long shift.

11:29 AM
The young casually dressed reporter who was here yesterday, enters and sits in the jury box with Matthew and myself.

11:30 AM
Judge Tynan asks if counsel are ready to proceed with the prelim.  Frances Young is not here yet.  I know she arrived at some point but it's not in my notes. DDA Sean Carney rubs his face with a Kleenex.

We are ready to go on the record with  the redirect of Mr. Bescos.

3. BRAD BESCOS - under redirect

DDA Carney goes over  his report (I believe a post fire inspection/incident report) of violations at the residence. Bescos states that no one had ever called requesting an inspection of a fireplace.

Bescos is asked about the steel column (main house structure) in the photos behind the 15 foot fire pit trough. He's then asked about the tiles that he remembers seeing in the general area.  They were like samples of tile and stones laid out; as if they were going to chose what they were going to do.

Bescos is asked about the electrical wiring in the middle or lower floors bathrooms.  There was some issue with that.  Re objects.  Carney counters that it goes to the defendant's general course of conduct.  Judge Tynan over rules the objection.  Bescos states, "There were connections from high voltage to low voltage ... without a UL rated junction box."  This was a violation of the electrical code. The box was a hazard.

Bescos is asked about the gas key on the front lower drywall surface of the 15 foot trough. Bescos states that after the fire, he saw a key (inserted in the rod/valve) on the front of the fire box/pit. Bescos explains the chrome ring outside of the gas key, and that the chrome ring could be unscrewed.

Redirect is finished and recross begins.

Re asks about notes in the body of the report that describe various violations that are related to the fire.  One of those violations is about fire blocking. Re questions Bescos in detail about fire blocking, it's purpose and the lack there of above the fireplace. Re asks if the fire blocking is designed to stop fire from moving up or moving across. Someone states their understanding is that it's to prevent it from moving horizontally.  Bescos clarifies that the report was written for the entire structure, (not just the fireplace).  Judge Tynan asks if anyone wants to make this report an exhibit.  Smiling, DDA Carney replies, "No."

D Re: You had a discussion with Mr. Becker about using fire blocking. ... Insulation ... about fire blocking. ... Did you put that anywhere in your report?
BB: No.
D Re: Did you discuss the question of the ... discussion with Mr. Becker about fire blocking to anyone else ... until you mentioned it to the district attorney?
BB: I did not have that discussion with anyone else.
D Re: Did you say to the district attorney, "That fireplace could have been there in, before September .... ?
BB: Yes.
D Re: Did you or did you not inspect the fire stops on that top floor at any time?
BB: I believe I did.
D Re: Do you have any notes to show that you did?
BB: No.

There's another question whether Bescos remembers speaking to the district attorney on a specific date.  Bescos doesn't remember.

D Re: During that conference, (do?) you remember saying that you never checked to see if any fire blocking had been installed?
BB: I don't remember saying that.
D Re: Did you lie to the district attorney?
BB: You're asking me if I said that and I don't remember saying that.

Looking over at Detective Stearns, he has his hand on his face in an unusual configuration.

Re continues hammering the witness about the fire blocking and whether he inspected it or not.

BB: We don't have the ability to inspect every stud (or every electrical outlet). ... The city only gives us 20 minutes.

Bescos has no recollection of writing a correction of fire blocking. I believe Bescos states that Becker came up with the idea to use insulation as fire blocking.  When they had the discussion about fire blocking, Bescos states he doesn't know what level he was standing on at the time.

Re argues that the homeowner has the right to know if he did the proper inspection.  This goes to the estoppel argument.  Re continues to try to impeach the witness.  Judge Tynan reads the building code.  There is a strict liability whether or not a (certification) has been approved.

Carney interjects that the (responsibility) is outlined in the building code.  The homeowner and the builder is responsible.  The LA City Department of Building and Safety is not building the house.  They have limited resources. I believe Carney continues to argue the people's position that there was no entrapment by estoppel. "He has to have been given permission to violate the law... It only applies if he relied on information."

Judge Tynan interrupts for a question of his own.

Carney continues with his argument, regarding the construction of a fireplace out of combustible materials.  "This defendant didn't rely on anything the inspector told him. ... Railings were taken out. .... (He) ignored warning by the manufacturer. ... He treated Building and Safety ... not (as something) he relied upon .... he treated them as an obstacle."

Now Re is arguing the defense position.

Judge Tynan finally rules on the issue.  He feels that although the defense has effectively established the credibility issue (of the witness), he's asking counsel move onto a different issue.  He tells counsel, "This is a prelim, not a trial. ... Move onto a different subject matter. .. So objection sustained."

11:45 AM
I have Judge Tynan announcing, "The prosecution is fully represented. Ms. Young has graced us with her presence."  Re resumes his recross of Bescos.

D Re: During the inspection, there were instances where you issued correction notices?
BB: There were a variety of times where I issued a correction notice and he corrected it.

The defense presents People's exhibit 11, the top floor, a "shelf part' of the fire pit area.  Re is asking about a reciprocating saw and drywall and how it is cut.  Re confronts Bescos that the. " of this structure is made of WonderBoard®?"

BB: (WonderBoard) not as easy. You can still score it and snap it.

Re asks if one would normally use a saw with this product and Bescos replies that it would depend on the type of blade and saw.  There is a question about similar "display cases," in other homes and niches and measurements of an open space and the height off the ground of that space.

D Re: Is it your experience people in houses in this area display their art one and a half feet off the ground?
BB: I have no idea.

Re asks Bescos to tell the court what he remember he saw.

D Re: Did in your interview, did you ever tell them about these "pebbles?'
BB: I don't remember.

I believe then Re asks Bescos if was interviewed by the deputy district attorney and the fire department.

Recross is over and redirect begins.

Carney asks Bescos about Exhibit 51,  a booklet titled: Code Check For California. Bescos is familiar with this book.

SC: You talked about in prior testimony that Mr. Becker pulled out a code book ... for ... such as issues over fire blocking.  Is this a similar type book?
BB: Yes.

I believe Re tells the court he has no more questions and Carney confirms that.  Judge Tynan replies (I believe in a joking manner), "I rarely hear that."

Bescos is excused.  Counsel then present argument over what the next witness can testify to.  (I apologize readers. I have a note here, and I'm not sure who is speaking but I'm guessing it's DDA Carney. Sprocket.)  "The jury or the court as you ... cannot have an understanding as to what is extreme negligence, unless they know the building code, the electrical code, (etc.), ...  all relevant for the understanding of standard of care. ... Requirements in the building code ... that a fireplace construction inside (a home) has to have a certain clearance for combustible materials."

I have Re arguing, "A particular structure has to be six inches from that ... It's improper to have witness say that's a violation. ... I think he can establish standard of care but he can't make a judgement as to the violation of standard of care ... Not what the law is but the application of the law, Evidence Code 805 ..."

DDA Carney replies, "(It's) impossible to discuss the violations of statute without taking into (account) the totality."   Judge Tynan responds, "(I'm) going to let the witness testify and he may have (an) opinion that's (?) illegal but that's not binding on me."

SC: ... tell the court what it is your do.
DF: Fireplace and hearth's product consultant. Fireplace investigations and fireplace inspections.

Feb is self employed. He doesn't work for the government. Feb gives his very impressive CV.  He has served on an arson investigation board of directors.  He's investigated over 400 incidents for the origin and cause of fire.  He teaches in this area as well as the private sector and publishes on the topic.  He has a background in fireplace construction and inspection.  He got into inspections in 1990 and has been doing inspections since then.  He teaches in the area of inspections as well.  He's testified as an expert at least 300 times.

Feb states he is experienced with wood, gas, indoor and outdoor fire places.  He estimates that as to the number of inspections he has performed is somewhere in the range of 18-20 thousand for mixed wood or gas fireplaces.

I believe Judge Tynan asks him a question here.  Feb has performed some private consulting as to design and some with cities.  Some consulting has been on resale properties to assess systems.

The 400 investigations, those would be with respect to a fire or some other type of injury.

Feb answers "We," and Judge Tynan asks about that.  Feb apologizes and tells the court that his wife works the office end of his business.

SC: The basis, (of his work is to determine?) minimum compliance with building code and to determine safety of system?
DF: That's correct.
SC: And to determine if there are fire hazards?
DF: That's correct.

Feb will also inspect commercial ovens and hoods, all small appliances but he "focuses on fireplaces, chimneys and vents."  The majority of his work involves investigation of residential fireplaces gone wrong.  There is some commercial property work.

Feb also has had specific training in (Pacesetters?) to understand building codes, not just "know them."  Feb states that he also hold several inspector certifications.  He has an extensive CV and is familiar with building codes and international building codes.

Feb was retained by the prosecution to investigate a gas fire appliance at 1546 Viewsite Drive in Los Angeles County.  He was provided with material to review including photos of the residence and police reports.  He also reviewed a video of the actual firefighting operation.  Feb also reviewed instructions from a company called HPC Hearth Products, based in Ohio, for a natural gas appliance HWI fireplace apparatus, also known as a "trough."

People's exhibit 11, a photo of the trough instructions before the fire.  Feb also reviewed photos of the 15 foot trough installed in the top floor.  People's exhibit 19, a photo of the trough control box.  The manufacturer's name on the product was Hearth Product Controls Co. For the trough, Feb reviewed the installation manual and warning tag and contacted Greg Steck, owner of the company, regarding his product.

SC: After reviewing all those materials (did you form an?) opinion as to the construction of the 15' gas appliance on the top floor?
DF: ... was gross negligence.

D. Re: Objection!  (I don't have the ruling.)
SC: Were you able to form an opinion?
DF: Yes.
SC: Were there a number of factors... ?
DF: Yes.

People's exhibit #13.

SC: In forming your opinion as to whether or not the construction was gross negligent construction ... what's the standard of care?
D. Re: Objection!
Judge Tynan: What did you learn about the fire? Specific facts to form your opinion?

Feb states he first looks at the building code, to see if the ... appliance was tested and (UL?) listed.  This product didn't have those tests.  Second, the company's manufacturing instructions and that ties to the building code once again. Third, his background and experience. But the main is, the code and the manufacturer's instructions.

SC: The appliance itself. Describe it to the court.
DF: 180 inches. ... It was a combo (of) 2 (300 ?) BTU's rating into one system.

There were three different documents from the manufacturer.  The email document to Mr. Becker; a tag applied to the appliance when it was shipped; the manual included when it was shipped.

SC: Did you review the tag? .... What was significant about the tag?
DF: The clearance requirements and ventilation requirements. ... The tag also has information on it (about the) responsibility of the installer.

D. Re: Objection! (I don't have the ruling.)

SC: Was that information important in forming your opinion?
DF: No.

The warning notice clearly indicated failure follow installation instruction could result in a loss of life.  Feb discusses the only steel trough to transfer heat.  The clearances required for this item were 96 inches above and 14 inches on each side.

SC: Did it have adequate clearances?
D. Re: Objection!
Judge Tynan: Sustained.

The 96" height requirements were not met. The space clearance above the trough was about 18 inches. The (surface?) sides, 14 inches, it did not meet that as well.  The trough was framed with combustibles.

There was WonderBoard® not considered a combustible, on the back wall. Tile was attached to that. He inspected the device at LAPD evidence locker.

SC: How far from combustible materials...
D. Re: Objection!  What are we talking about?

The trough was laid directly on drywall, on top of a wood frame.

SC: Is drywall combustible?
DF: Yes.  ... Wood is combustible matter.

Feb mentions the ventilation.  I required 2 18 inch square vents. If venting not present, the flame could be drawn downward.  If the device was outside, it should have 18" vents in the outside of the structure.  Not installing vents, it brought on the fire.

I believe Feb states that each (control) box in the trough, put out 3,000 BTU's in heat.  Both boxes had scoring.  In one box, the fire moved out into other areas of the house.  Feb saw similar evidence of burn patterns in the other fireplaces in the house.

Feb was never at the house. He saw device at LAPD evidence locker and viewed photos of fireplaces in the lower levels.  He saw burn pattern in the photos of the lower fire places.

Judge Tynan asks about drywall. I believe Feb responds that it is fire resistant but it will burn.  WonderBoard, it doesn't burn. Feb explains the testing standards for a material as either combustible or non-combustible.  Feb then explains the "snap switch" safety mechanism.  Once the temperature falls within a normal range, it switches on again.  Feb then goes over the instructions for the device and the warnings the device is for outdoor use only and the important parts, ventilation.  The instructions on the device say, it must be installed by a certified NFI (?) installer.

I believe Feb describes the differences between an indoor and outdoor fireplace.  An indoor product has to be tested (by a certified testing agency) as to the manufacturers standards, ventilation, and clearances.  These agencies test for drafting and if it's safe.  Everything would go back to the actual testing results required for that product.  It's a requirement in California that the front of a fireplace be covered.

Judge Tynan interrupts testimony, telling counsel, "It's near the witching hour.  The reporter is giving me dirty looks."  The court reporter shakes her head.

3:00 PM
During the break there is a discussion among Judge Tynan's staff and counsel about the recent cutbacks at the court.  The court has closed several buildings.  There is also a discussion about AB109 also known as "realignment."  Arraignments of specific types of cases are moving to the East Los Angeles courthouse and the Metro courthouse.  The impact is that other courthouses will have to pick up the work loads that closing courthouses used to handle.

I note that Young's jacket looks like a wool weave.

3:20 PM 
Back on the record.

People's exhibits 49, a fireplace and 52.  Exhibit 52 is the inside of the fire appliance.  Now we are shown photos of the new fireplace that was installed after the damaged home was rebuilt.  The photos are admitted, limited evidence as to what would be acceptable construction.

As I'm remembering these photos months later, it was a huge wall installed fireplace, mounted into the old fire trough area.  It appeared to be stainless steel and there was a type of glass in front of the flame/fire area.

Feb is asked if he is familiar with this type of appliance.  Feb states it's listed as a MONTEGO gas, certified appliance.  Exhibit 52 is a photo of the device showing that it's a box within a box.  Feb states it's sheet metal construction, that isolates the heat.

D Re: Objection!
Judge Tynan: Sustained! Move onto different topic.

Carney asks about the instructions for the trough. Feb states the instructions went into a good description to go into warning to the end user.  Feb goes over the various warnings and standards for installing the fire trough, and the recommended materials to use to build the enclosure.

SC: Did the fire trough comply with the instructions?
DF: No.

It was next to combustible materials.  There wasn't the required venting and no clearances for combustible products.  So three things. The framing was combustible materials. There was no venting to keep temperatures down. There were no vertical or horizontal clearances (to the recommendations).

Carney now asks Feb to compare this to the building codes.  The building code requires inspection and permits for a fireplace appliance. There were none.  Feb goes over another building code law,

Regardless if the owner pulled a permit or not, the City is not liable.

D Re: Objection!  Move to strike!
Judge Tynan: Sustained. You can argue.

Section 91.110 of the building code is discussed.  The law is read into the record.  Feb talks about (instructions?) on systems safety.

D Re: Objection!  Calls for legal conclusion!
Judge Tynan! Over ruled.
DF: It (fire pit/trough) did not meet requirements.
D R Objection!
Judge Tynan: Over ruled.
DF: The manufacturer's requirements were not followed and built improperly.
SC: Are there other requirements in the (City of LA?) Building Code that it did not comply with?

Feb mentions other parts of the code that were not complied with. He talks about section 112.1,  which is about installation of a combustible appliance.  Feb talks about an unlisted (unrated UL) appliance and the amount of clearances needed.  Feb talks about the building code requirements for venting.

SC: Did it comply with the building code?
DF: No, it did not.

The device was not properly vented.  There are no codes that make exceptions.

Code 91.101.2 is discussed. The purpose of this code is to safeguard life and welfare of the public.  There are always minimum requirements.  It's never the maximum requirements.

SC: Were you able to form an opinion regarding the manufacturer's instructions and the municipal building codes, whether the fire trough was installed and construction was grossly negligent?

D Re: Objection! (I don't have the ruling.)
SC: I believe the evidence code ... an expert can give an opinion.

I believe DDA Carney or Judge Tynan asks, "Would an expert, competent builder of fireplaces, a reasonable person, ... build like this?"  Feb answers, "No."

Feb explains how the fire starts and where it expanded to.  The next question is about fire blocking.  Fire blocking should consist of the same material ... installed every ten feet.  There must be a barrier (fire block) to slow the spread of fire.  The objective is to slow the progression of fire and separate horizontal spaces from vertical spaces.

4:00 PM
I start to get sleepy.  The AP reporter enters then soon leaves.

Feb explains that there was no horizontal fire stop (above the fire trough) and the photos show the fire (rolled?) over the top of the enclosure and spread to the drop ceiling.

There must have been a question or some friendly banter between counsel and the court because I have a note here that Judge Tynan says, jokingly, "I trust these guys."

Feb states the construction of the fireplace enclosure and installation of the fire pit was, "So out of the norm that it didn't compare..."

SC: Did it present imminent danger and death?
DF: Yes.
SC: What's that based on?
DF: The nearness of the combustibles ... heat transfer of the products ... based on experience ... burn patterns.  If it not happened at this time, it would have eventually.

I believe direct is finished and cross begins.

Feb would not change his opinion that Investigator Thost was not aware of insulation used as fire stop.  There is a question about compliance with duties if the building inspector and Carney objects.

D Re: Are you saying the code doesn't require (you?) to do the job?
DF: Building code is mute on that.
D Re: You could find no records for permits.... ?

I believe Feb answers just for the regular appliances.

D Re: Ever spoke to Mr. Bescos about his practices?
DF: No, I did not.
D Re: Know anything about his practices?
DF: No, I do not.

D Re: Isn't it a fact that something that hasn't been tested doesn't mean it doesn't meet (the requirements), it just means it's never been tested?
DF: That's correct.

Re asks about the difference in building codes between the city and ordinances.  Building codes are developed in the field by experts.  Feb states he had never worked for the DA's office before. He's worked for the County of Riverside, and for the public defender's office.  His work is billed hourly. He confirms he's never been to the house; he looked at a series of documents and tapes.  Re asks that when he makes his opinion, he's assuming that the reports he's reviewing are accurate.  Feb answers, "Yes, there is some assumption."

Cross ends and redirect begins.

Feb states who he specifically worked for in Riverside County; Mr.s Knight at the public defender's office.  In that case, he never got to testify. This is his first criminal case.  He's testified for the plaintiff and defense in civil litigation.

Carney asks Feb a hypothetical.

SC: Let's say if a building inspector saw the fireplace and signed off, would it change your opinion?"  D Re: Objection!
Judge Tynan: Sustained!
SC: Same hypothetical. Does it change your opinion as to the reasonable(ness) (of the)
DF: No.
SC: Why
DF: We do see mistakes, but we never seen a mistake so far outside the norm. ... Knowing the job.
SC: Does the city rely on the good faith of the building owner?
DF: Yes, it does.

Direct ends and there's no recross.  It's 4:20 PM  Judge Tynan notifies counsel that tomorrow he has three evaluation and 20 progress reports on his regular calendar.  He tells counsel, "Why don't you come in at 11 AM?"  They are given a couple of hours to argue.  Re gives his condolences to the witness, who will not be available again until next Monday, due to his brother's death.

In the elevator, Matthew and I ride down with DDA Carney and Detective Stearns.  Matthew asks Carney if he can get the code book (that was shown in court that Becker was using) on Amazon.  I pipe up and tell Matthew we have that book. He can borrow ours.  Mr. Sprocket bought it when we put in our own central air and heating system.  Matt responds, "Why am I not surprised that Mr. Sprocket has a copy of that book?"  And for the first time, Detective Stearns smiles.

To be continued in Part VII......