Monday, July 15, 2013

Gerhard Becker Case: Pretrial Hearing 7

Gerhard Becker, shortly after his arrest.

Tuesday, July 9th, 2013
It's 8:45 AM and I'm inside Judge Norm Shapiro's courtroom, Dept. 116.   Over at the bailiff's desk, two deputies are watching something on a laptop that appears to be making a lot of noise.  I overhear one of them say, "That was the coolest plane..."  Becker is in the gallery, sitting in the second bench row near the aisle.  I sit in the same row, but farther down to the left, more in line with the prosecution table and the witness box.   There are several people in the gallery who are waiting for their case to be called.

The court clerk at the desk today --a pretty blond woman-- is a different person that the last time I was here.  I notice for the first time black and white printed signs on the walls near the long gallery benches.  It's an image of a cell phone with a circle around it and a line drawn through it, meaning "No cell phones."

There are two attorneys sitting in the well, chatting.  I'm freezing because the courtroom is cold. I'm berating myself for not bringing a sweater with me on the hottest day of the week.  More counsel enter the well and check in with the new court clerk.

The regular court clerk comes out from the back office area.  She's an attractive black woman with long corn-row braids that look longer than my 'past my elbows' long hair.  The court reporter comes out and starts to set up her equipment. She is back from vacation and chatting with several attorneys in the well about her recent jury service on a civil case.  Judge Shapiro comes out from his chambers. He's not in his robe yet. He has a large bow tie on again and he's chatting with the two court clerks.

8:55 AM
Judge Shapiro takes the bench. He calls the first case but an attorney in the well tells him, "We need an interpreter."  Another attorney in the well turns around and gestures to a client in the gallery. It appears as if he's asking his client if he checked in with the bailiff.  A female attorney checks in with the court clerks and then sits at the defense table. Judge Shapiro and several attorneys are at side bar. I hear snatches of the conversation and it appears they are trying to schedule the next hearing.

Donald Re, Becker's attorney was here earlier sitting with Becker in the gallery but the he left for a bit.  He's back now and takes a seat in the well.  DDA Carney has not arrived yet.

A very slender, attractive attorney enters. She's wearing a flimsy, chiffon like peach dress with a short, dark, (it looks navy or black), suit jacket over the dress, tightly cinched at the waist. It's an interesting look.

An attorney enters and calls into the gallery for a defendant who isn't here.  He then goes over to speak to Re.  Re shakes hands with another female attorney who enters the well. Most of the counsel in the well are lined up in the seats directly in front of the jury box.  Another casually dressed man enters and checks in with the bailiff.

It appears the braided court clerk is explaining procedures to the pretty blond clerk.  Maybe she's in training for a new position.

9:08 AM
DDA Sean Carney arrives and checks in with the clerks.  He then greets another defense attorney in the well, who tells Carney he has an arson case.  Carney explains that unless it's a serial or high-profile crime, he doesn't handle regular car fires or apartment dwellings.  A female attorney named Joann (sp?) is sitting beside Re. She is introduced to Carney when he arrives.   There is a friendly conversation going on between the three.  I overhear Re tell Carney the house is sold.  Joann says they can't exonerate the property bond until the cash is in hand. This is all about transferring Becker's property bond to a cash bond.  From what I'm overhearing, it appears Re is going over the wording as to how the transfer has to happen.  Carney is still reading the document he was handed.

9:15 AM
The interpreter the court has been waiting on shows up and checks in with the bailiff.  A moment later Judge Shapiro takes the bench and greets everyone.  He gives a nice "welcome back" to is court reporter.  Matter number 7 on Judge Shapiro's calendar will be addressed first.  It's concerning a probation hearing.

9:20 AM
A bald attorney with a wicked six inch long scalp scar, nods to a man in the gallery and then check in with the court clerks.  DDA Carney moves to the jury box to make room near the prosecution table.  The interpreter is ready.  The next case is called.  The defendant, who is not in custody, is going to take a plea today. He will plead guilty to all three counts.  It's either the judge or the DDA on the case who mentions that the defendant could serve seven years locally (that means, in the men's county jail).

Before the defendant can plead guilty, a series of questions must be asked of the defendant.  The interpreter is answering for the defendant in English.  The defendant is charged with selling cocaine, which is a violation of the California Health and Safety Code. The defendant is charged with selling methamphetamine, which is also a violation of the Health and Safety Code.  He's also charged with having a false compartment (activity?) in a vehicle.

DDA: Do you understand these charges against you?
Defendant: Yes.
DDA: Did you discuss (the charges?) with your attorney?
Defendant: Yes.
DDA: Do you desire to plead guilty or no contest?
Defendant: Yes.

The DDA then tells the defendant, "I must advise you of your rights." He tells the defendant that if he went to trial, the maximum sentence he could receive would be eight years and four months in local custody.  :You have a right to a court trial. ... You have a right testify and present witnesses."

I look over at Becker.  Donald Re is sitting beside his client while this plea is going on.  In the middle of the DDA's statement made to the defendant, there is an interruption and counsel are asked to approach.  Becker has his left hand to his face, rubbing his chin, and sometimes covering his mouth with his fingers.  He gives out a heavy sigh. 

Judge Shapiro passes sentence. "The court would impose a four year term total on count one. ... On count two and three, impose a bench term of two years."  The counts would run concurrently.  The initial DA's offer was five years. So this agreement with the court is a good deal for the defendant.

The defendant is ordered back on August 9th to surrender to the court.  The court accepts the plea today and order him back.  If the defendant doesn't show for the August 9th date, the court can impose a higher term.  Everything is agreed to by the prosecution and the defense.

Now the DDA is back with the advising the defendant of the rest of his rights. I look over at Becker again. Becker had the tips of his fingers of his left hand, resting on his lower lip. It almost looked as if he was biting his nails, but he wasn't.  It was obvious he was intently observing the plea agreement proceedings.  Now, I see that Becker has the fingers of his left hand in front of his mouth.

9:30 AM
Becker gets up to leave the courtroom for a moment. Re gets up from the gallery and takes a seat in the well.  Judge Shapiro imposes a ($280.00?) fee and the defendant is required to register as a narcotics offender.  The defendant's plea is clarified. He's pleading "no contest" to possessing over one kilogram of cocaine.  Same plea for the methamphetamine and the false compartment.

The defendant is asked, "Are you pleading no contest because you believe it is in your best interest to do so?" "Yes," the defendant replies.  The court accepts the plea.  His next hearing is on August 9th, where he will surrender.

Another case is called and the DDA in the peach dress stands up for her case.  A subpoena she issued for her case is returned and she opens the document in open court.   That case is put over until July 24th.  The next case is called.  It's a man who has been sitting in the back row of the gallery.  Earlier, Judge Shapiro addressed him from the bench.  Apparently, the defendant recently had eye surgery. Judge Shapiro asked the defendant if he had sun glasses with him. He did. Judge Shapiro tells him to put on the sun glasses to protect his eyes.  Usually, individuals are not allowed to wear sun glasses while inside a courtroom.

Judge Shapiro states the case is listed for sentencing.  The court asks about his surgery. The defendant tells the court that his doctor said he was okay to surrender. The court tells the defendant the court was going to charge a three year probation and 90 days in jail. The charge is for a DUI.  The defendant must enroll and complete a DUI program.  His license to drive has been suspended by the DMV.  Judge Shapiro imposes sentence for the DUI.  Felony formal probation. Serve 180 days in county jail.  The defendant is required to pay a restitution.  He must supply a DNA sample.  He must complete a 90 day DUI program.

The pretty DDA advises the defendant of the Watson situation. (Because of the California Supreme Court's reversal of the lower court's decision in Watson, it's my understanding that when a defendant is sentenced for a DUI in Los Angeles County, the DA's office notifies the defendant what will happen if they drive under the influence again and some one dies as a result. Sprocket.)

The DDA advises the defendant that if he's charged with a DUI again, and someone dies (via his driving drunk) he will be charged with murder.

As to count two, the court imposes time to concur to the 180 days so ordered.

The next defendant is called.  This defendant has another case in the Alhambra courthouse. This matter will be put on hold until the outcome of the case in Alhambra.

10:05 AM
Carney, Re and Joann go into Judge Shapiro's chambers on the Becker matter.  The court reporter does not go with them, so this is a discussion off the record about the bond.  Ten minutes later, everyone returns to the courtroom.

10:17 AM
On the record with Becker. Joann identifies her last name for the record. Nielsen. The court signed in triplicate various bond orders.  The bond clerk in the building has been advised.  The case calendar is zero of 30.  The court indicates the case has been here for some time.  The court has reviewed six volumes of preliminary transcript.  Initially, the 995 motion to dismiss was put off but now they are going to go forward and Re will argue his motion.

Re: My major concern is this.  The building inspector, Mr. Bescos is completely un-credible. I (realize? that on a 995, the court has limited things it can perform. ... What I'm concerned about is this. ... That the preliminary hearing judge would not consider entrapment by estoppel. ... We contend Bescos approved the fireplace. ... We have someone in (st.? actually?) telling him he can proceed with the dwelling.  ... What we are faced with is, .... an incomplete record ... We were precluded from presenting (this?) defense on (the) preliminary hearing."

The court responds, "I don't necessarily agree that you weren't provided a defense. ... I get that Judge Tynan wasn't buying into it."  I believe the court continues with their position, saying the defense was advised further presentation of witnesses, but he (Judge Tynan) made up his mind on that issue. Addressing Re, the court adds, "You term it a denial. He (Judge Tynan) heard argument and denied it."

The court continues, "It's more difficult for this court that witnesses didn't testify in front of me.  ... I did recognize there would be issues there. ... My issue here is, did the preliminary magistrate make reasonable conclusions on evidence. ... So if this goes before a jury or a court, I don't know. ...  This court was not willing to intervene."

DDA Carney argues. "I think the people's position was outlined in the prelim. ... I don't think Judge Tynan denied (a) defense as much as he thought it didn't apply. ... The cross of Mr. Bescos by Mr. Re was very thorough."  Carney continues with why the people doesn't think entrapment by estoppel applies. "In this case at best, he was given permission to build a fireplace in violation of the building code."  That doesn't give him the right to commit manslaughter. "It is a gross over application of the law for the government to give permission of manslaughter. ... I think there is more than enough evidence not to support estoppel. ... In the building code it even says, you can't rely on the building inspector. ... Whatever court makes of Mr. Bescos credibility, he states he did not give permission to build (that) fireplace."

Carney adds that in regards to other items, Mr. Becker ignored the building inspector on other items.

Re adds another argument. The problem he has is the argument that the facts don't support (estoppel). To say the facts don't support the defense when you don't have all the facts.  "If (Becker was?) told he can act in a particular manner, that's what entrapment by estoppel is prepared to protect. .. Even if the analysis is correct ... that is error here because (the court? we?) don't have all the evidence to submit a defense."

The court politely counters, "I appreciate (the defense) position but I believe the magistrate... " (made the correct ruling. "Motion denied. ... the real issue will be if a jury trial, how the jury is instructed (in regards to entrapment by estoppel)."  The case is set for Dept. 100 at zero of 90.  Judge Shapiro tells the parties, "Be prepared to have a date in mind so Dept. 100 knows it's coming."  After the clerk contacts Dept. 100, the word back is Dept. 100 would like the date within the next two weeks, and waive additional time to remain in long cause courtroom.

Re and Carney ask if it's possible to go down to Dept. 100 today.  They are set for Dept. 100 for tomorrow, July 10th, at 8:30 AM.  Judge Shaprio politely thanks Re and Carney.

I did not attend the hearing in Dept. 100 on the 10th. I found out through the DA's calendar that the Becker case has been transferred to Dept. 104, Judge Robert Perry's courtroom. The next hearing in Dept 104 is July 15th.  Judge Perry was the presiding judge in the Stephanie Lazarus case.