Courts

Thursday, September 22, 2016

UPDATE: Judge Allows Budget Motel Evictions to Proceed

Posted By on Thu, Sep 22, 2016 at 10:35 AM

THADEUS GREENSON
  • Thadeus Greenson
UPDATE:
In a ruling filed this afternoon, a Humboldt County Superior Court judge has given the city of Eureka the green light to condemn the Budget Motel.

The motel’s owner, David Kushwaha, had asked the court to intervene and stop the city’s forced eviction of his tenants, which was initially scheduled to happen this morning, due to substandard conditions and more than 340 code violations. Through his attorney, Kushwaha asked the court to give him 45 days to address the violations, which include bedbug and cockroach infestations, hazardous wiring, inadequate plumbing and heating fixtures and a host of other things.

But Judge Dale Reinholtsen found Kushwaha had little chance of ultimately winning the case and that the alleged violations are “hazardous and pose an imminent threat to occupants of the motel and the surrounding community.”

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Tuesday, September 20, 2016

Lawsuit seeks hefty fines for 5 coastal commissioners

Posted By on Tue, Sep 20, 2016 at 6:24 PM

california-coastal-commission-logo.jpg
Del Norte County Supervisor Martha McClure is one of five coastal commissioners facing thousands — if not millions — of dollars in fines in a civil lawsuit alleging they failed to “disclose private, ‘ex-parte’ meetings with developers, lobbyists and other individuals” as required by law.

The lawsuit filed in San Diego Superior Court last month by the recently formed nonprofit corporation Spotlight on Coastal Corruption also names Commissioners Erik Howell, Wendy Mitchell, Mark Vargas and Steve Kinsey, who serves as the board’s chair.

"We have documented a shocking pattern of under-reporting of ex-parte communications with five Commissioners," said attorney Cory Briggs, who is representing Spotlight, in a statement on the group’s website.


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Saturday, September 17, 2016

No Charges in Fatal June Crash

Posted By on Sat, Sep 17, 2016 at 4:12 PM

Humboldt County District Attorney Maggie Fleming. - SUBMITTED PHOTO
  • Submitted photo
  • Humboldt County District Attorney Maggie Fleming.
The Humboldt County District Attorney's Office has opted not to pursue criminal charges against a 21-year-old woman who lost control of her truck on State Route 299 in June, killing a hitchhiker she'd picked up earlier in the day.

The California Highway Patrol arrested Adryan Nicole Pollock, of Eureka, on June 16 at the scene of the crash, after she'd lost control of her Dodge pickup, causing it to roll and eject Hugh Grant Jr., 78, of Klamath, who wasn't wearing a seatbelt. Grant was pronounced dead at the scene.

CHP Sgt. Jeff Borgen said the responding officer decided to arrest Pollock on suspicion of vehicular manslaughter in an abundance of caution, in part because Pollock didn't have "satisfactory identification" with her and there was some question about her identity. 

In an email to the Journal, District Attorney Maggie Fleming explained that evidence in the case indicates Pollock swerved her truck to avoid an oncoming vehicle that had crossed over into her lane, resulting in the rollover crash that ejected Grant. Neither alcohol nor drugs were believed to be a factor.

"We concluded this was a tragic accident that did not involve criminal liability," Fleming wrote.

See past Journal coverage of the accident here.
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Thursday, September 15, 2016

UPDATE: Court Document Indicates Kitchen was 'Extremely Intoxicated'

Posted By on Thu, Sep 15, 2016 at 11:37 AM

Marcia Kitchen's booking photo.
  • Marcia Kitchen's booking photo.
2nd UPDATE:
Marcia "Marci" Kitchen pleaded not guilty to both charges facing her this afternoon and denied all special allegations during a brief arraignment. She's next scheduled to appear in court Sept. 29, with a hearing set Oct. 6 to determine if there is enough evidence to hold her to stand trial in the case.

UPDATE:
According to a criminal complaint filed by the Humboldt County District Attorney’s Office, Marcia “Marci” Kitchen has been charged with one count of vehicular manslaughter without gross negligence and one count of DUI causing injury. She also faces special allegations related to there being multiple victims and her fleeing the scene of the crash.

A statement of probable cause compiled by DA investigator Adam Jager in order to get a warrant for Kitchen’s arrest sheds additional light on the case. According to the document, Kitchen was seen returning to her residence minutes after the collision in her gray Jeep Wrangler, which police later found concealed behind a fence in her backyard less than two miles from the crash scene on Eel River Drive. “Within 10 minutes,” Kitchen returned to the scene of the crash, where multiple officers observed that she was “extremely intoxicated,” according to the document.

“During the lengthy investigation, it was determined that Marcia Kitchen was in fact the driver of the Jeep when it struck the two pedestrians, one being her daughter,” Jager’s statement reads. “This is based on the following facts: The vehicle is registered to her, it was located concealed at her residence, the Jeep’s driver’s seat was adjusted for someone of her stature, there is physical evidence that confirms the Jeep is in fact what struck the victims and Kitchen made statements to friends and family after the collision that she is the one who was driving her Jeep when the pedestrians were struck.”

Kitchen is scheduled to be arraigned in the case this afternoon and is free after posting $750,000 bail.


PREVIOUSLY:
Marcia Maelinda Kitchen, who also calls herself Marci Marz. - FACEBOOK
  • Facebook
  • Marcia Maelinda Kitchen, who also calls herself Marci Marz.
Marcia "Marci" Kitchen, a Fortuna woman suspected of being the driver in a July hit and run crash that killed her daughter and another teenage girl, was booked into the Humboldt County jail Wednesday on suspicion of vehicular manslaughter while intoxicated. She was released after posting bail, according to the Humboldt County Sheriff's Office's online booking sheet.

Kitchen has been the focus of a two-months-long investigation by the California Highway Patrol since the days following July 12, when her 14-year-old daughter Kiya Kitchen and her friend, Faith Tsarnas, also 14, were struck and killed while riding skateboards on Eel River Drive just after 9 p.m.

Kitchen posted bail at 9:18 p.m., according to the booking sheet, on a warrant issued by the Humboldt County District Attorney's Office for a suspected violation of penal code section 191.5(b), vehicular manslaughter while intoxicated. Kitchen's attorney, Ben Okin, said she surrendered to authorities as he repeatedly said she would in the event a warrant was issued for her arrest.

For background on the case, see past Journal coverage here. We'll update this post with additional information as we get it.

Press release from the Humboldt County Sheriff's Office (Note: the press release incorrectly states one of the charges facing Kitchen, as she was charged with vehicular manslaughter without gross negligence):

On behalf of the Humboldt County District Attorney’s Office, the Humboldt County Sheriff’s Office is providing the following information in regards to the arrest of Marcia Maelinda Kitchen, dob 8/27/1977, from Fortuna.
On Wednesday, September 14th Kitchen self-surrendered to the DA’s Office on a Ramey warrant. Kitchen was booked into the Humboldt County Correctional Facility at 8:09 p.m. for the following charges: gross vehicular manslaughter while intoxicated, driving under the influence and causing bodily injury to another person, fleeing a crime scene, causing great bodily injury in commission of a felony, and for causing bodily injury or death to more than one victim while driving. Her bail was set at $750,000 and was posted at 9:18 p.m. Kitchen will be arraigned today, September 15th at 1:30 p.m. at the Humboldt County Superior Court.
Any further information regarding this case should be directed to the Humboldt County District Attorney.

Editor's note: This post was updated from a previous version to correct an error regarding the penal code section Kitchen is alleged to have violated and the time she posted bail.
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Friday, September 9, 2016

Prelim Set in Infanticide Case

Posted By on Fri, Sep 9, 2016 at 10:32 AM

A selfie with Misztal and her baby, posted Aug. 5. - FACEBOOK
  • Facebook
  • A selfie with Misztal and her baby, posted Aug. 5.
The mother of a baby girl who died after being taken to Mad River Hospital with what police described as severe skull fractures remains in jail on $1 million bail after pleading not guilty to causing the injuries that led to her daughter’s death.

District Attorney Maggie Fleming said in an email to the Journal that a Sept. 14 preliminary hearing has been set for Ewa Misztal, a 28-year-old Polish national.

Misztal was living in an Arcata apartment on the 400 block of Union Street with her 7-week-old daughter, whose name has not been released by authorities, when the injuries occurred.

Arcata Police Department Detective Sgt. Todd Dokweiler said a neighbor called 911 around 11:30 a.m. on Aug. 27 after Misztal went to them for help because the child was not breathing.

Dokweiler said an officer administered CPR to the baby in the ambulance on the way to the hospital, but the department was notified about 30 minutes later that the child had not survived.

“There were skull fractures found and they were fairly significant,” he said. “So, in our investigation, that would be suspicious in nature for a child of that age.”


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Thursday, September 1, 2016

EPD Shooting Case Heads to Trial

Posted By on Thu, Sep 1, 2016 at 4:03 PM

Tommy McClain - FROM THE 'JUSTICE FOR TOMMY MCCLAIN' FACEBOOK PAGE.
  • From the 'Justice For Tommy McClain' Facebook Page.
  • Tommy McClain
SAN FRANCISCO — Parents who say a Eureka policeman shot their son to death though his hands were in the air can take their case to trial, a federal judge said Wednesday.

Twenty-two-year-old Thomas McClain was shot to death by Eureka police officer Steven Linfoot on Sept. 17, 2014, his parents say in the lawsuit they filed in May of 2015.

The parents, Lance McClain and Jeanne Barragan, say their son was complying with orders and had his hands up when Linfoot fired seven bullets, three of which hit Thomas as he stood in his front yard.

The city claimed in a motion for summary judgment that McClain was reaching for what turned out to be a BB gun in his waistband and that Linfoot acted appropriately to neutralize a potentially deadly threat.

During a Wednesday hearing, U.S. District Judge William Orrick said he would rule for the city on some counts alleging negligent pre-shooting conduct, but not for claims relating to improper use of deadly force.

The city argued that Linfoot is entitled to immunity for claims of excessive force because he acted reasonably while facing an imminent threat of serious physical harm.

But Orrick said that because one witness contradicted the officer's story and testified that McClain had his hands up when he was shot, the material dispute of fact must be hashed out by a jury.

Nancy Delaney, a private attorney representing Eureka, said there was "irrefutable evidence" that McClain's bicep was against his chest when the first shot struck him, proving his arms were at his sides, not in the air, when he was shot.

"We understand the plaintiffs have endeavored to essentially make the decedent a bit of a contortionist," Delaney said, before placing her hands near her waist to show the judge where she believes McClain's hands were when bullets first hit him.

Delaney said that evidence is consistent with Linfoot and another officer's account of the shooting.

The family's attorney, Dale Galipo, countered that it is undisputed that McClain never touched the replica gun in his waistband and that McClain tried to comply with the officers' conflicting orders to put his hands up and "get down."

"Even if the arms lowered hypothetically to the chest or sides, he could not shoot someone," Galipo said. "He would have to actually appear to be grabbing the gun to use it."

Galipo added that no one can say which shot entered McClain's body first, to prove what position his arms were in when the first bullet struck him.

Delaney told the judge that dash cam audio reveals clearly that officers told McClain to keep his hands up, but the judge said he reviewed the footage and found it more opaque than straightforward.

"The commands on the video were confusing to the third person not on the scene," Orrick said. "They may have been clear to a person there, but they certainly weren't clear to me. That's one of the reasons I think there is a dispute."

The dash cam recorded audio, but the shooting was not captured on video.

Orrick said he would absolve Linfoot for his pre-shooting conduct, but that conduct can be used as evidence at trial to argue that the officer used excessive force.

"I'm going to stick with my tentative ruling," Orrick said, citing his plan to grant summary judgment to the city for pre-shooting conduct claims only.

The trial is set to start on Nov. 17 the Federal Courthouse in McKinleyville, in Humboldt County, 13 miles north of Eureka.

Eureka, pop. 27,000, is on the Pacific Coast, 270 miles north of San Francisco and about 100 miles south of the Oregon border. It is the Humboldt County seat.

This story was reprinted with with the permission of Courthouse News Service.
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Sunday, August 28, 2016

Orr Pleads in Shooting of Phillipsville Woman

Posted By on Sun, Aug 28, 2016 at 9:55 AM

da.png
A 60-year-old Southern Humboldt man faces 14 years in state prison after pleading guilty to voluntary manslaughter stemming from the April 25, 2015, killing of a woman in Phillipsville.

According to a press release from the Humboldt County District Attorney’s Office, Earl Orr pleaded guilty Friday to voluntary manslaughter and using a firearm to cause death, accepting responsibility for the shooting of Jessica Hare, 47, of Phillipsville. According to the release, Orr shot Hare while “drunk and belligerent” and had no memory of the killing when contacted by police.

Orr is scheduled to be sentenced Sept. 22 in the case, but is in line to receive a 14-year term stipulated as a part of the plea agreement.

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Wednesday, August 24, 2016

Murder Arrest Made in 2015 Garberville Beating Death

Posted By on Wed, Aug 24, 2016 at 5:45 PM

Preschern
  • Preschern
More than a year since a Georgia man died after being severely beaten in Garberville, police have arrested someone for his murder.

The Humboldt County Sheriff’s Office announced today that Raymond Earl Preschern was extradited from Oregon on a warrant for the murder of Khanh Lam and booked into the local jail on Aug. 19.

On July 18, 2015, sheriff’s deputies were called to Garberville’s Jerold Phelps Community Hospital where Lam was in critical condition, unconscious from a possible assault. Through their investigation, deputies learned Lam, 37, had been involved in an argument with a female in downtown Garberville after attempting to remove a child from her car. During the argument, four men allegedly confronted Lam, who took off running. The men, who had dogs with them, gave chase, according to the sheriff’s office.

“At some point during this incident it was reported by a witness that Lam possibly fell while he was running and received a head injury from falling to the ground,” a sheriff’s office press release that followed the incident stated, adding that witnesses called 911 after finding Lam lying unconscious in the 700 block of Locust Street. Lam was transported out of the area to be treated for a brain injury but was ultimately taken off life support by his family.

A forensic pathologist ultimately determined that Lam died of blunt force trauma that was inconsistent with a fall, morphing the investigation into a homicide case. It’s unclear at this point what led detectives to Preschern.

See the full press release from the sheriff’s office copied below:


Ramey Warrant Arrest - Case 201503461

On July 6, 2016 Raymond Earl Preschern was arrested by the Portland Bureau of Police in Oregon on a Humboldt County Superior Court Ramey warrant for the murder of Khanh Lam. Preschern was extradited and booked into the Humboldt County Correctional Facility on Friday, August 19, 2016.
The investigation is ongoing. Anyone with information for the Sheriff’s Office regarding this case or related criminal activity is encouraged to call the Sheriff’s Office at 707-445-7251 or the Sheriff’s Office Crime Tip line at 707-268-2539.
Previous (7/28/15):
On Saturday, July 25, 2015 an autopsy was performed on Lam’s body at the Humboldt County Coroner’s Office by a Forensic Pathologist. The results of the autopsy were Lam’s injuries were not consistent with a fall, as previously reported by witnesses. Cause of death was determined to be blunt force trauma to the head. The Humboldt County Sheriff’s Office is investigating Lam’s death as a homicide.
Previous (7/20/15):
On Saturday, July 18, 2015 at 12:48 p.m. a Humboldt County Sheriff’s Office Deputy responded to Jerold Phelps Community Hospital in Garberville, regarding a possible male assault victim, who had arrived at the hospital by ambulance. Hospital staff told the deputy that the male victim, who had been identified as 37 year old Khanh Lam was unconscious with a severe head injury and was in critical condition. Lam was flown to an out of area hospital for treatment, because of his injuries.
Deputies and CHP Officers then responded to a possible location where Lam was injured, which was located in the 700 block of Locust Street, Garberville. Deputies spoke to witnesses who reported that Lam was involved in an argument with a female subject and attempted to remove her child from a car. At some point during the argument (4) four males subjects confronted Lam. According to the witnesses Lam took off running and the (4) male subjects, along with their dogs started to pursue Lam on foot. At some point during this incident it was reported by a witness that Lam possibly fell while he was running and received a head injury from falling to the ground. When witnesses found Lam lying on the ground unconscious they dialed 9-1-1.
On Sunday, July 19, 2015 at about 5:00 p.m. a medical doctor informed the Sheriff’s Office that Lam is currently on life support and has no brain activity. Lam’s family has been notified and is consulting with medical staff on their decision to take Lam off life support. Lam is from Atlanta, Georgia.
The Sheriff’s Office is considering this a suspicious death investigation and is asking for the public’s help if anyone witnessed this incident. They are encouraged to call the Humboldt County Sheriff’s Office or Detective Jennifer Turner at 707-268-3642.
Anyone with information for the Sheriff’s Office regarding this case or related criminal activity is encouraged to call the Sheriff’s Office at 707-445-7251 or the Sheriff’s Office Crime Tip line at 707-268-2539.

Mike Downey, Sheriff


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Wednesday, August 17, 2016

Crescent City Man Gets 7 Years Under Felony Murder Rule

Posted By on Wed, Aug 17, 2016 at 9:42 AM

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A 32-year-old Crescent City man was sentenced Tuesday to serve seven years in state prison stemming from a home invasion in 2013 that left his accomplice dead. But no one is arguing that Samuel Hawken actually killed Josh Sherer.

Hawken pleaded guilty last month to voluntary manslaughter and assault with force likely to cause great bodily injury, according to a press release from the Humboldt County District Attorney’s office.

Hawken and Sherer broke into a residence on the 6100 block of Walnut Drive on Dec. 1, 2013, to confront some people who lived there. Once inside, Sherer began fighting with a 46-year-old resident there, jumping on top of him and hitting him with his fists.

Sherer pepper sprayed the man and, during the fight, Hawken joined in and struck the 46-year-old several times with a baseball bat before fleeing the scene. A 47-year-old neighbor, who lived in a trailer on the property, then came to the 46-year-old’s aid, grabbing Sherer and restraining him until police arrived, according to statements from the sheriff’s office at the time.

When deputies arrived, Sherer was unconscious and not breathing. He was later pronounced dead at a local hospital. According to the district attorney’s office, an autopsy determined his cause of death to be asphyxiation.

While it’s clear Hawken didn’t physically kill Sherer, he was charged with his murder under what’s known as the felony murder rule. A legal doctrine, the felony murder rule holds that if someone is knowingly committing certain felonies — including burglary — and someone dies during the crime, that person can be charged with their murder as the death was a foreseeable result of the underlying felony.

“When a person engages in a dangerous, provocative act and a death results, he or she may be held criminally responsible even if the actual killing was at the hands of another,” Humboldt County District Attorney Maggie Fleming said in a press release.

See the full press release copied below:



NEWS RELEASE
AUGUST 16, 2016

On July 1, 2016, Samuel Hawken, 32 years old of Crescent City, pled guilty to voluntary manslaughter and to assault with force likely to cause great bodily injury and stipulated to a 7-year prison term. He was sentenced August 16, 2016.

The convictions stem from an incident on December 1, 2013, when Mr. Hawken and Josh Sherer, 32 years old of Eureka, went to a residence in Eureka to confront the people who lived there. Mr. Hawken brought a baseball bat while Mr. Sherer carried pepper spray. The two attacked the homeowners, who fought back. Mr. Hawken ran out of the home while Mr. Sherer was caught and held down until police arrived. Humboldt County Sherriff’s Deputies discovered upon their arrival that Mr. Sherer was unconscious from being held down. He was later pronounced dead; an autopsy revealed asphyxiation as the cause of death. District Attorney Maggie Fleming explained that, “When a person engages in a dangerous, provocative act and a death results, he or she may be held criminally responsible even if the actual killing was at the hands of another.”

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Tuesday, August 2, 2016

UPDATE: Eureka to Discuss Police Video Case Tonight, has Already Spent Thousands on Appeal

Posted By on Tue, Aug 2, 2016 at 3:18 PM

Police dash cameras capture loads of footage. But who should get to see it? - THADEUS GREENSON
  • Thadeus Greenson
  • Police dash cameras capture loads of footage. But who should get to see it?

UPDATE:
The Eureka City Council made no report out of closed session Tuesday night, indicating it has not yet made a final decision on whether to petition the California Supreme Court to review an appellate court ruling ordering the release of a police video of officers arresting a juvenile in 2012. The city has until Aug. 28 to challenge the appellate court's ruling.

PREVIOUSLY:
In closed session tonight, the Eureka City Council is slated to discuss a recent appellate court ruling upholding a Humboldt County judge’s order to release a police video of officers arresting a juvenile suspect back in 2012.

Meanwhile, records turned over to the Journal this week in response to a California Public Records Act request indicate the city has already spent at least $7,683 unsuccessfully appealing Humboldt County Superior Court Judge Christopher Wilson’s ruling. On May 20, 2015, Wilson found the public’s interest in seeing footage of the 2012 arrest of a 14-year-old outweighed any privacy concerns, and granted a Journal petition that sought the video’s release.

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