Chen Verdict: A Former Judge’s Perspective

A defendant was recently granted probation in a case before the Santa Barbara Superior Court that involved four felony counts and one misdemeanor charge. The defendant “pled straight up,” that is, admitted his guilt before trial with no promise of a certain sentence in return. His plea subjected him to the possibility of up to seven and one-half years in state prison. The sentencing judge had the discretion to impose such a sentence, or to grant probation. A grant of probation would subject the defendant to the imposition of that 7 ½ year sentence if he were to violate any of his probationary terms or conditions.

The case has received considerable public attention because it involved heinous acts of cruelty against what many consider “man’s best friend,” his dog. That scrutiny was elevated because the case also involved a charge of felonious assault involving domestic violence. The facts and circumstances of the case caused many among us to experience fear, anger, frustration, and systemic rejection based upon our perspectives regarding this case.

Western society’s unique affiliation with the canine species can be seen in the award-winning novel The Curious Incident of the Dog in the Night-Time by Mark Haddon. That story centers on a teenage child with Asperger syndrome and his effort to solve the murder of a neighbor’s dog. The novel was adapted for the stage and won a Tony for Best Play on Broadway just last month. But our canine connection has deep historical roots.

The “best friend” appellation bestowed upon a person’s dog is said to stem from a trial’s closing argument in 1870, given in a small-town Missouri courtroom. A person had shot and killed his neighbor’s dog, named Old Drum. George Graham Vest, a local lawyer, who later became a United States senator, gave a brief but compelling closing argument at the civil damages trial regarding the death of Old Drum. He said, in part, “The one absolutely unselfish friend that man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous is his dog.” (“Tribute to the Dog,” by George Graham Vest.) That oft-quoted argument to the jury cannot be read without experiencing heartfelt emotion.

The unique role of dogs in the historical development of our country mirrors their role in other cultures around the world over the last 12,000 years of recorded history. “Dogs are remarkable animals because they are uniquely sensitive to the cultural attributes of the people with whom they live. Not only are dogs a product of culture, but they also participate in the cultures of humans. In fact, dogs were the first animals to take up residence with people and the only animals found in human societies all over the world.” (A History of Dogs in the Early Americas, by Marion Schwartz.)

Dogs have even carried religious significance in societies around the planet. For some cultures, they have been deemed the means of conveyance into an afterlife upon the expiration of our time here on earth. On the other hand, it is also true that some societies consider dogs to be unclean scavengers and would never consider them as pets. What is considered acceptable treatment of dogs varies in cultures around the world.

The acts constituting the crimes in this matter were, beyond any reasonable doubt, unspeakably cruel and depraved. The horrific acts committed against this dog resulted in the medical decision to euthanize the dog to end its suffering. The fact that persons have renamed the dog “Davey,” the appellation given the dog by the treating veterinarian team, pays homage to that medical staff.

It was argued by the prosecution at sentencing, and many feel appropriately so, that a state prison commitment was warranted. But the known circumstances also include that the defendant had never been arrested before these events, had just reached the age of majority at the time of the crimes, and wasn’t raised in our culture.

He was also pursuing a college education, had solid family support, and was considered a low risk of continued violence of a domestic nature based on legally approved standardized testing procedures. These are all factors which California law requires any judge to consider during a felony sentencing proceeding. The legal requirements governing any judge’s consideration of a felony sentencing proceeding are vast and complex. But they include the following:

“At the time (of sentencing) the probation officer of the county of the jurisdiction of said criminal shall……inquire into the antecedents, character, history, family environment, and offense of such person, and must report the same to the court.” (California Penal Code Section 1203.10) That report must include: “Any relevant facts concerning the defendant’s social history, including those categories enumerated in section 1203.10, organized under appropriate subheadings, including, whenever applicable, “Family,” “Education,” “Employment and income,” “Military,” “Medical/psychological,” “Record of substance abuse or lack thereof,” and any other relevant subheadings. (California Rule of Court 4.111.5(a))

In terms of whether or not to grant probation, a judge is required to consider, among many other things, the defendant’s prior record, whether he is remorseful, as well as the defendant’s ”Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors.” California Rule of Court 4.414(b)(4). (emphases added)

In short, our state law, based upon constitutional considerations, requires every judge in every case which occurs in his or her courtroom, to consider, weigh, and balance a wide array of factors related to the offenses at issue. But the judge is also required to consider the defendant’s personal circumstances, including the defendant’s social background (which includes culture), education, community ties, collateral impacts of the felony conviction on his life, and many other delineated considerations at each and every sentencing hearing where probation is an option. Others are free to focus solely on the nature of the offense, and to ignore or minimalize other considerations. The sentencing judge was not free to do so.

Those sentencing considerations do not, in this instance, relate to the legal concepts of “excuse” or “justification.” Those are defenses to a criminal charge which, in the realm of law, relate to whether or not conduct is criminal, whether the defendant is guilty or not guilty of a particular charged offense. The defendant in this instance admitted he committed the crimes by his plea of guilty to each and every charge and allegation against him, eliminating consideration of the legal concepts of excuse or justification. Those are issues which might be raised by the defense at a trial proceeding, but they are not considerations once one arrives at a sentencing hearing.

Two highly experienced and eminently qualified and competent Probation officers had reviewed the case thoroughly and evaluated the considerations required by law, and each had, in separate reports to the court, recommended a withholding of any state prison commitment. They recommended efforts to rehabilitate and redirect the defendant through strict supervision and therapeutic requirements utilizing a probationary disposition. The judge followed their recommendation.

In addition to other strict terms and conditions of probation, including that the defendant have no “contact with any animal unless in the presence of a responsible adult” and have no contact with his former girlfriend, the judge ordered that the defendant engage in therapies and treatment, including a year-long Batterer’s Treatment Program. The judge also imposed the maximum county jail sentence of one year that can attend a grant of probation, and he insured that the sentence would be served behind bars. He did so by immediately remanding the defendant into County Jail after sentencing. By not allowing the defendant to appear for the sentence at a later time, the judge eliminated the opportunity for the defendant to apply for “alternatives” to confinement in jail. Defendants are routinely granted sufficient time to make such applications given our persistently overcrowded jail conditions.

At the time of sentencing, the judge also denied a request that the defendant be allowed to delay commencement of the jail sentence for two days. The defense had made that request because the defendant’s mother’s birthday was being celebrated the day after sentencing.

The judge had evidence which could have led him to conclude that the defendant was remorseful, a required sentencing consideration. The defendant said at sentencing, “I feel terrible for the harm I caused to my ex-girlfriend and my dog, Jason … As part of my effort to get better, I am receiving continuous treatment from a psychiatrist. I regret my actions very much. And I am ashamed of what I have done … I understand what I have done is unforgiveable, and I am extremely regretful and sorry about it.”

The defendant makes statements that appear to be evidence of his acceptance of personal responsibility for his actions. He acknowledges that his actions have interrupted his lifelong college plans and dishonored his family. He states further, “I am very sorry for what I have done. I can only beg you for mercy.”

One can view that expression of contrition skeptically or as a heartfelt acknowledgement of the wrongfulness of one’s conduct. If one was not in the position of the decision maker, an element of speculation enters into the process. That judge was there to see the defendant make the statement. Given the configuration of our courtrooms, the defendant could have only been facing that sentencing judge, and no one else. The call on the defendant’s credibility and level of sincerity rested with the court.

The number of times a friend or acquaintance has asked me, or some other judge, for his or her thoughts about a difficult criminal proceeding which became the subject of headlines are innumerable. For many, the response is invariably the same. “I wasn’t in that judge’s courtroom. I don’t know all the facts. I didn’t see the witnesses testify, or observe the defendant as he entered the plea.” It can, and has been argued that this judge’s decision was too lenient. It could conceivably be argued that aspects of it were too harsh.

We have the most complex and highly developed legal system in the world. Our civil case courtrooms are where societal disputes are resolved; and our criminal case courtrooms are where those who transgress our agreed upon rules of conduct have their actions adjudged, and where punishment is meted out. As a society, we empower our judges to make those difficult decisions. Those decisions are always reviewable by a higher court.

In this country, we have the freedom to disagree with each of those decisions, whether made at the trial or appellate court levels. But we must, in deference to our compact of citizenship, give some measure of respect to the decisions made by those to whom we grant the authority to impose such life changing decisions. They have one of the most complex and challenging roles in our constitutional system of governance.

The Hon. Frank J. Ochoa is a retired judge of the Santa Barbara County Superior Court.