A recent case from the California Court of Appeals caught my attention because it involved a defendant here in California, and a “victim” in my home state of Indiana. In the matter of People v. Shapiro (2014) Cal.App.4th, the court affirmed the conviction of 59-year-old Mark Irving Shapiro (hereafter “Old Shapiro”), who had a 2+ year online relationship with a young Hoosier girl (hereafter “Hoosier Jane Doe”), who was 14-years-old at the onset of their communication.

Shapiro pretended to be young lad in Huntington Beach, California, when he began talking to Hoosier Jane Doe in chat rooms just before her 15th birthday. He claimed that he was only a few years older than her and even sent her pictures of a teenage boy to represent himself. After a while, their occasional chats turned into constant contact, to the extent that Hoosier Jane Doe began to shut out her real life friends and family in favor of Old Shapiro, and even claimed to be “in love” with him. When Hoosier Jane Doe was 16, the relationship turned sexual. Old Shapiro began encouraging her to masturbate and sending her links to pornographic videos and exchanging naked pictures of his teenage alter ego for naked pictures of her. He also convinced her to penetrate herself with the handle of a hairbrush in order to achieve orgasm.

Eventually Hoosier Jane Doe’s parents became worried about the dramatic changes in her behavior and they hired a private investigator to do a background check on their daughter’s long-distance love. After installing a keystroke logger on her computer, they were able to track down Old Shapiro’s true identity and the subject case ensued.

Old Shapiro was convicted of violating California Penal Code section 288.3(a), and sentenced to 5 years of formal probation and 240 days in jail. On appeal, Old Shapiro put forth several failing arguments, including a defense that the trial court had rejected based on Indiana’s definition of a “minor.”

The defendant was convicted of violating a statute that prohibits contact with a minor with intent to commit one of the target crimes; the target crime in this case was California Penal Code section 289(h), which prohibits “participation in an act of sexual penetration with another person who is under 18 years of age.” For purposes of the statute, “sexual penetration” is defined as “the act of causing penetration, however slight…by any foreign object, substance, instrument or device, or by any unknown object.”

I included the text of the statute here for a reason: Old Shapiro argued that he had the mistaken belief that he was not violating Penal Code 288.3, which prohibits contact with a minor – because in Indiana, the age of consent is 16. However, the argument fails because the target crime here specifically prohibits participating in penetration of someone who is “under 18 years of age,” and does not use the term “minor.”

Shapiro also claimed it was a violation of his right to privacy and free speech, claiming that since Hoosier Jane Doe was an adult under Indiana law, the two had the right, as consenting adults, to discuss sex. The court disagreed. Another part of Old Shapiro’s argument was that California’s law was intended only to protect California minors, but the court was equally unpersuaded by this contention, especially since the statute in question makes no mention of the minor’s location.

The point of this discussion is just to point out that when you are charged with a particular offense in one state, you should expect the laws of that state to apply – and not rely on another state’s definition or loophole to provide you with some sort of defense. Although we are all entitled to Equal Protection under the law, alleged violations of that principle are subject to tough scrutiny under the law and will rarely be cause for exoneration.

Today in court, counsel for Alix Tichelman claims she had no motive to kill Forrest Hayes, the victim in her pending manslaughter case out of Santa Cruz. Hayes was an executive at Google and also worked for several other tech companies. Public defender Larry Bigham told the judge that Hayes had been a steady source of income for the defendant, who would thus have no reason to want him dead. He was trying to get Tichelman released on her own recognizance or at least get a reduction in her $1.5 million bail; both requests were denied.

Security video from the time of Hayes’ death apparently shows the lady of the night preparing a syringe of heroin and injecting it into Hayes, who collapsed after a severe reaction to the drug. According to the police, instead of calling 911, Tichelman packed up her drugs while sipping a glass of red wine, and promptly got the hell out of dodge. She is now facing a manslaughter charge (among others), the prosecution alleging that administering heroin was “part of her routine.”

The scenario was all too familiar for Tichelman. In September 2013, she came out of the bathroom to find her “boyfriend,” 53-year-old Dean Riopelle, unconscious from a heroin overdose. She claims that she spent 5 minutes trying to revive him and only then called 911. Riopelle was eventually transported to the hospital but was taken off life support one week later.

So, can evidence of the prior case be used against Alix Tichelman in this new case? The answer is: maybe.

California Evidence Code section 1101(b) provides the following: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

In layman’s terms, this section allows evidence of “prior bad acts” to prove anything BUT the accused having a propensity towards a particular act or behavior. This type of character evidence can, however, be used to prove things such as intent, knowledge, familiarity, etc… So basically, the prosecution only needs to frame its relevance in terms other than to show likelihood of defendant having committed the crime at hand, and the incident is admissible character evidence.

There have been many cases that define the parameters of this type of character evidence, far beyond this blog’s capacity. For more, see: http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1982&context=plr

Last Friday, Franc Cano, 27, and Steven Dean Gordon, 45, were arrested in Anaheim.  On Monday, they were both charged with four counts of special circumstances murder and four counts of felony rape.   If they are convicted, they will face a minimum of life imprisonment without the possibility of parole and could face the death penalty.  

Background

Both men were previously charged with lewd and lascivious acts with a child under fourteen and were believed to have met in 2012 when they both cut their ankle bracelets and boarded a grey hound bus to Las Vegas.  They were apprehended two weeks later by federal agents and were returned to CA where they were charged and convicted for failing to register as sex offenders.  After the conviction, both reported monthly and were ordered to wear government issued GPS devises. 

Meanwhile, four women went missing.  Santa Ana Police Chief Carols Rojas reported that the two men “were not on our radar whatsoever.”  He explained that three of the women missing from Santa Ana, went completely off the grid.  They had been searching everywhere when the body of Jarrae Nykkole Estep was found on a conveyor belt at an Anaheim trash-sorting plant.  Once authorities realized that Jarrae had been murdered, and that she shared a similar profile with the other three missing women, they shifted the focus of their investigation. 

The ankle bracelets worn by the accused helped police identify Cano and Gordon as suspects and authorities suspect that there are more victims.

What are Special Circumstances Murders?

“Special Circumstances” are sentencing enhancements that can be used to increase a murder sentence and qualify it for the death penalty.   In 1972, in Furman v. Georgia,the United States Supreme Court found that applying the death penalty without any limitations was a violation of the 8^th Amendment’s prohibition against cruel and unusual punishment.  In response, California enacted Penal Code 190.2.  This section sets out the “special circumstances” that qualify a first degree murder conviction for the death penalty.  The list is a bit all over the place because it is comprised of both legislative additions, and voter additions.  Some of the circumstances include; murder of police, murder of a judge, murder’s involving torture, driving by shootings, bombings and more.  In this case, the special circumstances include murder during the commission of rape, multiple murders, and lying in wait.   

You can read your cell phone map, until you can’t.

Steven Spriggs was driving in stop and go traffic while looking at the map on his cell phone.  An officer saw him holding the device and proceeded to pull him over and issue him a $165.00 citation.   The Superior Court of Fresno County affirmed the conviction, but the Court of Appeal disagreed with their conclusion and reversed.

The Court of Appeals determined that Vehicle Code Section 23133(a) did not prohibit all hand held uses of a cell phone.  The court explained that the code section merely “prohibits ‘listening and talking’ on a wireless telephone unless the telephone is used in a hands-free mode.”  In support of this conclusion, the court explained that the legislative history of the code provision focused on the distraction caused by holding a conversation, not use of the device itself.  Further, that subsequent actions by the legislature that specifically prohibited texting while driving indicated that the legislature had not contemplated a prohibition against all phone use. 

For many, this muddies the water even more.  How exactly will officers be able to tell if someone is looking at a map or sending a text?  Now that the court has put their foot down on map use, officers are retreating to a different law, not included in the 2008 cell provisions, that prohibits “driving while distracted.”  Officers indicate that they will continue to pull over distracted drivers under this provision.

The elephant in the room: opening the back door to racial profiling

With the increasing number of blurry lines when it comes to driving and using your phone, I think it’s no secret that this law can be used as a pretext for racial profiling.  Do you know why I pulled you over? Because it looked like you were holding something in your hand that could have been a cell phone, and you may have been attempting to text while driving.   That could be anyone, at almost any given time.  

The moral of the story, get one of those mats that holds your cell phone to the dashboard for all to see.