Assault and Battery Case Dismissed in Felony Armed Robbery Plea Deal

Assault and Battery Case Dismissed in Felony Armed Robbery Plea Deal


10/20/17 – Three assailants, driving fifty miles per hour on a Castro Valley frontage road, assault and batter one of our members, a lone woman cyclist, by launching projectiles at her at a combined speed of over eighty miles per hour. The Alameda County Sheriff’s Office performed a quick and thorough investigation, charging all three assailants with felony assault. Two of the assailants are juveniles. Their sentences are to receive counseling. The front passenger was a 21 year old adult who committed felony armed robbery shortly after he assaulted and battered our member.

We served as our member’s advocate because she required anonymity and didn’t have the time or expertise to work through the legal system. We worked for months just to determine the status of the case. Even the Alameda County District Attorney’s clerical staff, who we now know on a first name basis, could not find the case and repeatedly asked us to call back again in a few weeks. We finally learned our case was trapped in the Alameda County District Attorney’s “overflow box” with other low priority cases. We asked in our 2/8/18 post if the assailants would “be emboldened to assault other cyclists in the meantime?”  Sadly, the adult went on to commit felony armed robbery.

One month after our update describing the “overflow box” situation, the case went to pretrial. The Alameda County District Attorney decided to combine our assault and battery case with the felony armed robbery case. The defendant plead no contest to felony armed robbery “upon the agreement that the battery case would be dismissed.” His sentence is 3 years probation, 2 months jail (which equated to time served on that date of conviction), a fine, restitution for both the robbery and battery cases, and stay-away orders from the robbery victim and our member.

The Requirement For Victim Anonymity

We asked the Alameda County Deputy District Attorney who handled our case how they can issue a stay-away order when our member required anonymity? He said it was the first he heard that she requested anonymity. Our member stated to law enforcement that she required anonymity from the time officers came to her house to take a statement. How was this not communicated?

The Alameda County Deputy District Attorney said defendants have the right to know their accusers unless the crimes charged are domestic violence, sexual assault or if the victim is a minor. He said “her name was given to the defendant in the legally required manner by which every criminal defendant is entitled to know the names of witnesses who may appear against him.”

In our Glendale assault case precedent the identity of the victim was protected. The Glendale District Attorney told us “the names of the victims were alleged in the complaint with their first name and first letter of their last name only (just like we do in matters involving sexual assaults or minor victims). There is nothing in the court file that contains their full names or identities.”

How can District Attorneys, operating under the same California legal system, have such incredible inconsistencies regarding something as critical as protecting a victim’s identity?

We asked the Alameda County Deputy District Attorney if the defendant was on probation for any other crimes when he assaulted our cyclist? He said they could not share that information because it’s confidential and the defendant has a right to privacy.

We are strong privacy advocates, but it’s ironic that in Alameda County the defendant’s right to privacy is protected but an assault and battery victim’s is not.

Massive Inconsistencies In Our Legal System

Sadly, cyclists wrestle with massive inconsistencies in our legal system as we documented in our 10 Legal Barriers poster and also recently presented at the League of American Bicyclist’s National Bike Summit in Washington D.C.

The cycling community needs to record and remember these incidents and use them as legal precedents. We fought hard to get CHP to stop rejecting cyclists’ incident reports, even when accompanied by irrefutable cyclist video evidence, because they did not “On View” (personally witness) every incident that did not involve a collision. We are sadly not surprised that other police departments still reject cyclists’ incident reports for the very same reason. The Houston Police Department still states that they have to “On View” all incidents not involving a collision.

The recent Governor’s Highway Safety Association report said the number one reason cyclists do not ride is fear of cycling on the road, and that enforcement is key to making our roads safe for cyclists. The Federal Highway Administration research documented that up to 60% of motor vehicle – bicycle collisions resulting in emergency room visits are not reported to police.  Cyclists need law enforcement to publicly state their commitment to cycling safety and to provide consistency in law enforcement.

Alameda County has a Climate Change Action Plan that states 60% of Alameda County greenhouse gases come from vehicle emissions.  They have made a strong call for mode shift to biking and walking since at least 2005.  To have any chance of meeting their mode shift goals they need to make sure that law enforcement – from the CHP to the Sheriff to the District Attorneys to the Judges – provide unambiguous public support for cycling safety and a clear call requesting cyclists’ egregious near miss incident reports using cyclist video evidence.

We are calling for a Enforcing Laws for Cycling Safety Town Hall to respectfully discuss law enforcement’s and our court system’s commitment to cycling safety, lessons we have learned over the years working in Alameda County, and best practices that can be shared and institutionalized. We are waiting to hear if the Alameda County District Attorney accepts our invitation. We will also invite the CHP, the Sheriff, and all cycling safety stakeholders, including local businesses.  Study after study have shown that cyclists are good for local businesses. Ensuring cyclists’ safety in traveling to those businesses is critical.

Action:  Please join us in calling for law enforcement and our court system’s public commitment to cycling safety by commenting below this post.  Please also ask your cycling community members to comment as well.  Precedents set anywhere in California can be leveraged by all California cyclists so this is not just about Alameda County.

One thing is certain: if our member did not ride with a camera her assault and battery incident report would probably have been rejected and her assailants would never have been identified.

You can help make our roads safer!   Comment below and share this widely.  Then, look for the Enforcing Laws for Cycling Safety Town Hall notice to join us live and share your concerns and support!

In addition, please partner with us to get cyclists to ride with cameras, submit their egregious near miss incident reports to our free Incident Management System, and back our work by donating or making a purchase at our store.

8 Comments

  1. bdughi on March 27, 2018 at 7:33 pm

    Hello District Attorney O’Malley,

    Thanks for attending Education Day today (March 27, 2018) in Castro Valley. We appreciate taking time out of what we know must be a super busy schedule. I sat right in front of you and planned a chat but could not find you in the end. I want you to understand that cyclists need your support in making cycling safer in Alameda County. I want you to know there were several cyclists on stage, presenting to you. I will not embarrass them by name.

    My family, including 10 yr old daughters, have experienced a number of malicious near misses while riding, due to poor bike infrastructure. We are frequently in need of “taking the lane” because most of them are too narrow, as suggested by League of American Bicyclists, Bike East Bay and others. Many drivers have no idea a cyclist may take the full lane so they become enraged when we do. The driver’s intent is obvious in their honking and yelling before trying to run us over. If the same person pointed a gun our way they would be prosecuted. Why in this case were the assault and battery charges dismissed? Our cycling community is familiar with the town hall format as Supervisor Miley has organized several on cycling in the past. Let’s do it again with your Office, the Sheriff and CHP. Good luck with your election this fall. Thanks.

    Bruce

  2. stacyspink on March 27, 2018 at 10:09 pm

    I would like to second the above commentary. Hammers, baseball bats, guns, cars, heck – even pillows – are all tools that can make our lives easier when used for their intended purpose or – when misused – be tools to commit murder or assault. Anyone who throws rocks at me, swings a bat, strikes me with a hammer – very likely they will end up in jail awaiting charges. Yet when someone (mis)uses America’s most dangerous lethal weapon – a motor vehicle – a tool that kills more people annually than firearms – they are back on the road the next day.

    I know not everyone owns a gun and irresponsible use of firearms is taken very seriously. But just because (almost) everybody owns and uses a car does not mean it should be taken any less seriously. Dangerous behaviors should not become acceptable behaviors simply because the majority practices and/or approves of such.

    Stacy Spink, Castro Valley, CA

  3. Karl Hodges on March 28, 2018 at 3:57 pm

    In the past I owned a bicycle shop in another county. My primary issue was helping those who wanted to enjoy cycling to become comfortable with traffic. I became a League of American Wheelmen certified trainer and offered free safety training to customers. This worked well for some but for others, the moment they were harassed by motorists they would abandon the sport/transportation/hobby. The business languished despite all feasible efforts.

    During my years there the El Dorado County Sheriff’s office dismissed a man who pulled a gun on World Champion Cyclist, and three time Tour de France winner Greg LeMond as he bicycled up Grizzly Flats Rd. When the Sheriff was made aware of who the victim was he arrest the gunman, but released him hours later. The next day this gunman entered a hospital, found where his brother-in-law laid in a bed and shot him to death.

    Rather than dismissing those who would attack other citizens who ought to be seen as equals in society, perhaps it would be better to consider the chance to improve justice. When a tiny portion of society harasses another group for something akin to being a minority, equal representation under the law becomes more important than ever. If the people who have it in for other road users have to face the legal consequences for their actions of intolerance, perhaps they will understand the value society places on tolerance for all minority members of society. If, however, these same were to do something like the gunman above did, it’s certain to reflect poorly on your office’s choices. Whether it’s a question of backing minorities, applying the law in an evenhanded manor, backing the efforts of a significant portion of society that enjoys cycling as they attempt to have their rights taken seriously – dismissing cases brought by cyclists seems counter to the duties we elected you to accomplish

  4. matthaber on March 29, 2018 at 8:07 am

    Thanks for your work on this case. It seems that we need continued pressure to be treated seriously on the roads.

    Two thoughts.

    (One), while the victim in this case would appear to have the desire, would it make sense to follow up the dismissed criminal case with a civil case? On one hand, it’s likely that the perps have little in the way of assets that could be seized in a judgement. On the other hand,

    (Two) California requires that drivers carry liability insurance. On the off chance that the driver was complying with the law, that provides an asset to be seized. If, as is likely, the driver was not carrying insurance, that’s another avenue to pursue with the DA. I’m not sure what penalties are provided in the law, but a reasonable outcome in this case is at least drivers license forfeiture.

    • CyclistVideoEvidence on March 29, 2018 at 9:07 am

      Hi Matt,

      Thank you for your thoughtful comments words of support. They are greatly appreciated.

      Experience has repeatedly taught us that continuous pressure is absolutely required for law enforcement and our courts to take cycling safety seriously.

      We will discuss your thoughts with our member, the victim, and the DA.

      We would like to work with you to make sure GPC cyclists ride with cameras and submit their egregious near miss incident reports to our Incident Management System. Please use our Contact Us form if you are interested in discussing this further.

      CVE

  5. wleben on March 30, 2018 at 7:13 pm

    As a longtime cyclist and Alameda County resident, I’ve endured many incidents of harassment by dangerous drivers who resent sharing the road with a bike. But I’ve experienced nothing close to what a Castro Valley cyclist experienced on 10/20/17.

    This is to urge Alameda County law enforcement to give higher priority to speeding offenses of any kind and especially to actions that endanger the lives of pedestrians and cyclists. In the long run, we’ll all be better off. If egregious offenses like those of 10/20/2017 do not lead to arrest and conviction, things will only get worse.

  6. jojolauer on March 30, 2018 at 9:49 pm

    It is all important that law enforcement and the DA’s take every incident seriously, pushing for appropriate charges being filed to convictions. Cyclists have as much right to the roads as the cars do, yet they are a thousand times more vulnerable. The fact that acts against cyclists are downplayed, dismissed out of hand, or reduced is the exact opposite of what should be happening. Cyclists deserve as much if not more protection by law enforcement as drivers as they are the underdog here – with the legal right to protection. If we are going to have any effect on improving health and encouraging children, families, commuters and all citizens to live healthier lives, cyclists must be protected and cycling must be perceived as safe. If we are going to have any effect on reducing greenhouse gases, cyclists must be protected and cycling must be perceived as safe. I whole-heartedly urge law enforcement and our court system to enforce the laws and prosecute acts against cyclists to the fullest extent.

    It’s also clear to me that riding with a video camera is the difference between having zero evidence of an egregious act or collision, and having absolute proof of what took place. I strongly encourage every cyclist to ride with one and to report every egregious incident on this site. By working together, we can help ensure that our roads will become safer. Thank you, Craig, for all that you do for so many.

  7. smbingham on April 5, 2018 at 3:53 pm

    Thank for for your work making sure the Alameda prosecutor took this case seriously. My daughter was killed biking to work in Cleveland in 2009 and I learned, as a lawyer, that I had to keep on top of the prosecutor the entire time to ensure the DA’s office took the case seriously and prosecuted it properly. Though serious legal errors were made by the DA’s office, the truck driver was convicted of reckless vehicular homicide and sentenced to three years in prison. Initially local cyclists were luke warm in their support for prosecution but gradually understood the importance for the cycling community of the well-publicized prosecution and trial. Steve

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