Mom Update #86

[Steve Ekstrand]

Mom's killer appealed the trial court's maximum sentence of 10 years for gross vehicular manslaughter (twelve years total plus 180 days in county jail for the driving on a suspended license).

The fourth appellate circuit, Division 2, Justices Hollenhurst, Martinez, and Miller affirmed the trial judges ruling, but reduced the count 1 charge from the maximum of 10 to the mid term of 6. They also reduced the 180 days to 120. They stripped one count of multiple gross bodily injury but since that could not increase beyond the maximum for such crimes it was originally irrelevant to us. Now I'm not so sure, since four years have been removed, that additional GBI served consecutively might have now counted. I just don't know much about criminal sentencing laws.

Bottom line... Old sentence 12.5 years. New sentence 8yrs 120 days.
No reasons given.

With good behavior she could be out of state prison next year. With the prisons looking to release 57K inmates, it could be earlier than that.

You want to see a very large man crying, come on over. Our family is crushed.

[Craig Naylor]

Steve, I'm sorry to here this turn of events.

Above, You stated your not up to speed on criminal law.... but do you know if she must receive a parole hearing prior to release, or is it automatic (that good behavior BS)?

[Tom Tanquary]

Steve, I am so sorry to hear this.

Just know that there is a justice coming that no one can escape.

[George Schilling]

[KJ Christopher]

[Bob Beamesderfer]

Steve, I'm sorry to here this turn of events.

Above, You stated your not up to speed on criminal law.... but do you know if she must receive a parole hearing prior to release, or is it automatic (that good behavior BS)?

Good behavior earns an earlier release, so it isn't parole.

Sorry to hear this Steve. Like Tom said, her inevitable judgment will be harsher.

[Steve Ekstrand]

I was told by the Riverside DA's victims liaison that there would be a parole hearing before any release before end of term. And that I would be notified and given a chance to respond. But I was also under the impression that if there was an appeal or any action on the case file, I'd be notified. So, much for that. I had a bad dream, woke up and checked the defendent's status. That's how I discovered the reduction in sentence that occurred eight months ago. I guess I should have been checking regularly. But after obsessing on the case for 18 months I was trying to put it out of mind.

No appearances by either side. Purely an appeal by mail off the briefs. She plead guilty, so I wasn't real concerned about an appeal. I was under the impression that sentencing was the trial judge's domain within strict parameters. There wasn't anything "creative" about her charges or sentence. Stuff was discussed with the DA to try and raise it, but in the end they went with the standard. I'd didn't think there was a legal basis for just asking an appellate panel to lower a sentence from the max to something less. In civil money judgments, its open ended, so a remittitur motion is common to reduce the damages if they are excessive in light of harm that actually occurred. I didn't even know that remittitur could be applied to sentencing. And the legal standard in a civil case to reduce punitive damages which is the closest legal analogy I can think of, is gross error or prejudice. I can't imagine what the claim here could be.

Sorry about the turn to PP, so please don't over do the response to my rant.... But it pisses me off that we worry so much about inducing stress in a terrorist (making them think they are going to drown while EMT's stand by and the most that happens is that they puke or get close to passing out). Meanwhile its no big deal to routinely torture our own families, our own law abiding citizens. Lock that bitch away for life as the reward and I'd gladly let you waterboard me. Same I'm sure for the dad about to lose his home (or family business) because a developer wants the property and the city uses its power of eminent domain in a deal with the devil. I could go on... There are so many examples of how we eat our own with little concern or debate.

Apparently, its not fair to give to a dirt bag killer who will likely harm again the maximum sentence of 10 years. That is unreasonable and must be reduced as a matter of law. I don't get it. I can't get it.

[Steve Ekstrand]

We knew going in this case about the sentencing debate under the Cunningham case. But we thought the CA Supreme Court had resolved what trial judges should do.... The US Supreme Court didn't see it that way.

Apparently right now, the Califonia Sentencing laws are broken. For all crimes there is a prescribed lower, middle, and maximum sentence. The presumptive sentence is the middle term. A balancing test between aggravating factors and mitigating factors is applied by the trial judge. Now in Federal court, the judge can make limited findings of fact to determine where a defendent falls in the range and it passes 6th amendment scrutiny (right to a trial be jury) as long as the sentence falls within the sentencing guidelines open for the crime the defendent has been found guilty of. Now understand, that the federal sentencing guidelines are much narrower than California's. Still, I'm not sure how the legal theories follow through on that rationale.

The situation in California is that any facts relevant to the balancing test in sentencing must be found by a jury (unless waived though it doesn't say that). The California Appellate court is taking the SCOTUS opinion to mean that in any case where a defendant pleads guilty that in that case the middle term is the new maximum term since there is no jury to review aggravating factors. This of course, completely discounts the defendants having waived a right to a jury. And it is counter to the federal scheme that allows judicial discretion within the guidelines.

What next? Does a jury have to review probation reports? Once a crime has been proved and a conviction obtained, the criminal justice system involves discretion at many levels. It has to. Do we now need juries to review good behavior recommendations in the penal system? How about the merit jobs handed out? How did we get to a point where the 6th amendment says that it violates a criminal's rights for a judge to have any discretion on sentencing?

We are more broken down than I thought. I'm shocked by the research I just did. I shouldn't be, but I am.

[Steve Ekstrand]

I just got through reviewing the original trial docs. Defendent specifically waived a jury on Cunningham factors. I remember this now, as the DDA was relieved that issue was over and we weren't going to have to be one of the first Cunningham trials in California. We'd just move on to sentencing and everything was focused on getting the max.

So, now the California Appellate courts are applying the 6th amendment rights even when they are waived. I give up.

[Bob Beamesderfer]

I just got through reviewing the original trial docs. Defendent specifically waived a jury on Cunningham factors. I remember this now, as the DDA was relieved that issue was over and we weren't going to have to be one of the first Cunningham trials in California. We'd just move on to sentencing and everything was focused on getting the max.

So, now the California Appellate courts are applying the 6th amendment rights even when they are waived. I give up.

She might have filed her own writ, having been coached by other inmates about new "intricacies" [mutations] of how sentencing works.

[Steve Ekstrand]

She had a private attorney with 30 years experience that specializes in DUI appeals.

No idea how she paid for that. Or if we paid for that.

One of three judges who heard the appellate case is a champion of appellate defense rights for the indigent including the state's providing top private counsel. Although indigent is a stretch here. She owns a home and a second property. Or problem in the civil suit was that husband is disabled which in California means they are basically judgment proof. Husband is old, but in a lot better shape than I am... Criminals play every angle and the system bends over backward.

[Kurt Rahn]

For all crimes there is a prescribed lower, middle, and maximum sentence. The presumptive sentence is the middle term. A balancing test between aggravating factors and mitigating factors is applied by the trial judge.

A person with multiple DUIs, the last of which ends up in an innocent victim's fatality? Is there a seemingly better case for the maximum sentence? What scenario could've been worse...that she killed an entire family?

The California Appellate court is taking the SCOTUS opinion to mean that in any case where a defendant pleads guilty that in that case the middle term is the new maximum term since there is no jury to review aggravating factors.

So if I walk into a crowded restaurant, open fire with my AK-47, kill 10 people and pelad guilty, I only get the medium sentence? That's complete BS. This is what pisses me off about our legal system; we're completely at the whim of a small group of people whose decisions are almost unquestionable. Where's the accountability?

BTW, I'm sorry to hear about this, Steve. It's got to be really disheartening.

[Marshall Grice]

can't you file an appeal on her appeal?

[Steve Ekstrand]

No appeal. Victims don't have standing anyway.

And from my research, this result is just the way it is in California right now. Our sentencing system is broke and the legislature hasn't dealt with the matter.

[Bob Beamesderfer]

No appeal. Victims don't have standing anyway.

And from my research, this result is just the way it is in California right now. Our sentencing system is broke and the legislature hasn't dealt with the matter.

They'll get around to fixing as soon as they can draw up a ballot measure.

[John Prosser]

Sorry to hear this Steve.
You and your family are in our prayers.
JP

[Sebastian Rios]

Ridiculous...What really sucks is that you have to constantly monitor this scumbag's journey through the justice system, just to find the gigantic holes she is stepping through (with help from a portion of your tax dollars. ).

Sucks man, I hope you can find a way to not let it get you down.

[Theo O.]

Sorry to hear about this Steve.

I don't understand how someone can get drunk, drive, kill and the system still allows them to mentally mess with the family.

[Steve Ekstrand]

The system is so broke.
She had two prior DUI's. She had been involved in a wrongful death civil suit.
She never complied with her probation. She never showed for a previous theft charge.
She was repeatedly stopped while driving without a license and with outstanding bench warrants, but nothing ever happened.
She'd be picked up, taken in maybe and ordered to appear. She never did.
For 20 years she worked the system committing crimes but never paying for it by just not complying.
The system just let it go. On the theft charge after a few years, the judge ordered it dismissed for failure to prosecute. Because the defendant refused to show for trial! Refused to comply with the warrants or court orders. When she killed my mom she was driving without a license. With an outstanding bench warrant for failure to appear. It was something like 14 FTA's. She jumped bail twice in this case and the DA finally got to the police to just go out to her house and see if she was home... She was. A judge finally looked at the record and ordered a real bail amount she couldn't make. And for the first time, after a life of crime and after taking at least one life... She would have to serve prison time. Four lousy years.


By the she had trace amounts of cocaine in her system and a BAC of .23 if I remember right. That means she was a serious drunk to still function with that degree of intoxication. The theory which could not be proven, was that they were rushing across the valley from Palm Springs (a casino they'd been at all night) to Desert Hot Springs to make a drug sale. The police never searched the car or the passenger. The passenger has a wrap sheet that goes for dozens of pages. If they had been able to prove up the drug sale, they could have prosecuted the passenger as well.