If somebody gets your credit card and goes on a shopping spree with it there’s not a lot the law can do about it because the defense lawyers, even the free public defenders, have so many artful quibbles that it is almost impossible to get a conviction, and without a conviction, you can forget ever getting any restitution, even if the person who used your card is not indigent, in which case you’ll never get any restitution, anyway.
Consider the demoralizing case of Luis Vargas, who accidentally dropped his credit card at WalMart on July 17th. The card was picked up by Jacob Daniel Heath, who went on a shopping spree with it, and Mr. Vargas didn’t find out until he got the bill, on July 31st, listing five charges he didn’t make. So Mr. Vargas went to WalMart to complain the charges were not his, and Community Service Officer Ryan Breece was called in from the Ukiah Police Department.
Officer Breece contacted store security officer Kristen Baughman, and she matched the charges to the date and time-stamp on the store surveillance videos and there was Mr. Heath at five different checkout registers making the purchases on Luis Vargas’s credit card.
Open and shut case, right?
Not quite so elegantly done, I’m afraid.
Officer Breece, who as a community service officer is not a sworn peace officer, took a photo of the person at the check-out and gave it to Officer Kevin Murray, who is a sworn peace officer, and Officer Murray saw Heath on North State Street and stopped Heath, read Heath his Miranda rights, got a go-ahead, asked Heath about the credit card.
Heath admitted it was him in the picture, but denied using the stolen credit card. Officer Murray then searched Heath for the card and found methamphetamine instead. So Mr. Heath was brought to court with his public defender, Eric Rennert, on two charges: using someone else’s credit card and possession of meth.
Here’s how it went.
Deputy DA Joe Guzman called Officer Breece to the stand and asked about a call to WalMart on July 31st when Mr. Vargas called to report the stolen card and subsequent charges, but before Breece could answer, Mr. Rennert objected that it was hearsay and therefore inadmissible.
This was what’s called a 115 preliminary hearing, where hearsay is admissible, because otherwise a whole array of witnesses would have to be summoned like in a trial. It was a quibble, sure, but Rennert would not relent, on the basis that Breece was not a sworn peace officer, and Judge Faulder had to get out the statute book and read the section 872(c), subdivision (b), the hearsay exception, and overrule the objection, which Rennert renewed notwithstanding, demanding it be stricken from the record.
Judge Faulder allowed Breece’s statement, though it was subject to be stricken, and we got past that first (largely imaginary) hurdle and on to the People’s Exhibits No. 9 through 10, the bill for the charges made from July 17th through the 23rd by Jacob Daniel Heath and, again, Rennert objected.
Mr. Rennert has a personal style of litigation – all the lawyers do, but Rennert’s stands out – wherein he uses a variety of techniques to blur the issue and confuse the witness. He likes to hem and haw, for instance, with roundabout stratagems, such as the following example.
“Was it er, uh, this alleged Mr., um, Vargas who, um, uh, gave you thee, um, uh, documents in People’s ur, uh, lemme see, here, thee, um, uh, People’s Exhibit Nine through ten, Officer – though you’re not really an, um, uh, officer, are you Mr. um, uh, — Breece, is it?”
“I’m afraid I don’t understand the question,” Officer Breece answered.
The bill for the charges was People’s Exhibit No. 9-10. These five charges were matched to the receipts for the unauthorized purchases Heath made, and of course Rennert objected to the receipts as well. He objected not only to the bill and receipts being admitted as evidence but flung in an aspersion, “The prosecutor’s trying to get the exhibits in through the back door, as it were, your honor, and now he’s testifying as to what’s in the documents as well.”
Prosecutor Guzman had asked Breece if the receipts matched the charges in the bill.
“Your objections are noted and overruled,” Faulder answered.
Mr. Rennert’s objections sound like trifling quibbles to the lay ear, and for the purposes of a preliminary hearing, the judge was able to overrule them, but Rennert’s insistence on renewing his objections “for the record” means that it won’t be so simple to get past them in a trial. For these purposes, the very limited purposes of the prelim, the judge duly held Heath on the charge of using someone’s credit card, not his own, and Rennert’s next move was to have the charge reduced to a misdemeanor since the charges didn’t go over $950, the felony limit, thanks to Proposition 47, passed by the efforts of Newt Gingrich and some billionaire in the storage business, and which is a better indication of real inflation than the dishonest schemes of “pricing” that dissembling economists use to assure us there is no inflation.
Judge Faulder denied the 17(b) reduction motion – but not with “prejudice” which means it will very likely be granted later on, exempting Heath from being punished for taking Vargas’s card and using it; and, incidentally, encouraging him (or anyone else) to feel free to do it again.
The next item of business was the “alleged” meth found on Heath – already and, again, thanks to Prop. 47, a misdemeanor. Officer Murray has the silver 11550 lapel pin, for making over 300 meth busts, so he was pretty sure it was meth, but Murray went through with the NIK® test kit and the “white crystalline substance” turned the test strip blue, which is positive for methamphetamine.
But Mr. Rennert objected. The NIK® test, according to some authority Rennert was familiar with, something called the Kelly-Fry studies, that showed the NIK® test wasn’t conclusive, only presumptive, and before the charge of possession of a controlled substance could be proved, it (the alleged meth) had to be sent to the crime lab at the Department of Justice in Eureka. Murray said that of the hundreds of NIK® tests he’d done that went on to the DOJ all came back confirmed.
Rennert objected that Murray’s evidence was “anecdotal” and insisted that the officer wasn’t a chemist – and therefore his evidence invalid.
Judge Faulder had ruled that possession of the credit card was circumstantially implied from its use, and that even the NIK® was unnecessary for the purposes of the prelim, since Murray’s 11 years as a peace officer was sufficient to meet the standards of a prelim, which only has to be enough to make the judge “reasonably suspicious” that it probably was meth – and, yes, the DOJ analysis would be needed at trial – supposing the case ever went to trial, which, considering the amount of 0.08 grams, barely a “useable amount,” it probably won’t.
And that of course leaves Mr. Vargas with the all too likely outcome that he will never get his money back, and that Mr. Heath will not suffer overmuch punishment for the free shopping spree he went on at Vargas’s expense.
Lottsa Yuks Cauckwell
(This one calls for both drama masks, the tears and the laughs.)
Cheer Up All You Inmates At San Quentin — A Great Comedian, The Inimitable Richard Cauckwell Is On His Way With The Laughs!
“They love me at San Quentin, Judge, so gimme life, I don’t care, I just want a few more days to find my dog Spot — she’s had puppies, I’m pretty sure — and then I’ll turn myself in, gimme a surrender date and I’ll be there.”
Judge John Behnke noted for the record that Mr. Cauckwell had been late for his judgment and sentencing on Wednesday morning, so it was put over until the afternoon, and he was still late, peddling in at the last moment on a bicycle borrowed from Philo where he’d walked in search of his dog. Judge Keith Faulder had let him out of jail on his own recognizance as Judge Behnke had allowed.
Mr. Cauckwell’s lawyer, Public Defender Jeffrey Aaron, was asking the court for a minimal sentence of only 16 months, but he couldn’t get a word in as to why because his client just talked over him, interrupting anyone who tried to say anything, with a catalogue of his virtues and troubles.
He had three prison priors — “I served time for somebody else, but I don’t talk, I don’t rat, and I won’t say who” — eight felony convictions, 14 misdemeanor convictions, 20-odd violations of probation and parole, and 20 more failures to appear. He swore he never steals or lies — “all I ever done is try and tell the truth” — and right there DA David Eyster spoke up, “That’s a lie.” Eyster went on to read several convictions for theft from Cauckwell’s rap sheet. The DA had more to say on the subject, but of course the defendant interrupted.
The Public Defender tried to point out that the thefts were 20 years ago, but Cauckwell yakked right over his own lawyer, probably his only friend, trying to wring the judge’s heart — Behnke has a notorious weakness for dogs — and Cauckwell produced a flood of sobs, to good effect because it choked the judge up, but failed to weaken his honor’s resolve to lock Cauckwell up.
The Probation office was recommending the aggravated sentence, the Public Defender asked for the mitigated, and Judge Behnke split the baby, choosing the mid-term of two years, noting that the fire Cauckwell started in an abandoned building would have ended in his own death, and his dog’s, if a rookie CHP officer had mistaken the location for Sunny’s Donuts as being on North State Street, instead of South State Street, “had Officer Root not been in the area for culinary reasons,” as the judge characterized it.
A last ditch effort to look for Spot and her puppies failed — “I would never beg for myself, judge, but I’m begging for my dog Spot and her puppies, I don’t care if you give me life — they love me at San Quinten ‘cause I make ‘em laugh, I’m a retard, sure, but hey” — and Cauckwell was remanded into custody for transport to the California Department of Corrections and “Rehabilitation” (CDCR).
But it wasn't really two whole years, and not even the 16 months his attorney asked for. No, not even. The DA had graciously struck out Cauckwell's prior strike conviction, and with the 4019 credits along with 96 days actual time already served, Eyster pointed out that The Great Comedian and Tear-Jerker Cauckwell will only be at San Quentin for a limited engagement of about eight months.
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