Another VICTORY! Off Duty Drunk Cop Starts Fight And Gets His Teeth Knocked Out And My Client Does Not Need To Pay For Restitution Or Go To Jail.

I won a contested restitution hearing before Judge Hanoian on 3/22/12.

My client was originally charged with 3 felonies arising out of a fight with an off-duty SDPD officer. A the preliminary hearing, Judge Einhorn ruled that my client’s punch to the face of the officer was thrown in self-defense as the officer had struck my client in the neck after my client spit in his face. Consequently, he was held to answer on 2 added misdemeanors by virtue of the spitting, misdemeanor assault (count 4) and misdemeanor battery (count 5).

After my client pleaded no contest to misdemeanor assault and was sentenced to 3 years summary probation, the People requested a restitution hearing, claiming that my client was responsible for restitution to the officer amounting to $50,000-$30,000 for medical and dental expenses, and $20,000 to reimburse the City’s worker’s comp carrier.

Judge Hanoian found that Judge Einhorn’s factual findings at the prelim were binding upon him at the restitution hearing, and rejected the People’s condition that my client was responsible for restitution since the spitting was the legal and proximate cause of the injuries and loss of wages.

In ruling the officer was not entitled to any restitution , Judge Hanoian was particularly offended by the officer’s worker’s comp claim , observing that his application was fraudulent as there was no way he was engaged in the performance of his duties at the time.

The officer hasn’t given up yet, though. He’s filed a civil suit against my client alleging my client was the aggressor , notwithstanding Judge Einhorn’s holding to the contrary.

We’ll see.

– Mike McCabe

Prelim Victory

My client was involved in a fight with an off-duty San Diego Police Officer on a Sunday afternoon. Both my client and the cop were drunk. According to the cop and his girlfriend, who were residents of the condo complex where the fight occurred, after an exchange of obscenities, my client spit in his face and “sucker punched” him in the condo pool area, after which the cop subdued him to await the arrival of back up.

At the preliminary hearing on the charges (PC 245(a), PC 243(d), PC 243 (c)(2) and a GBI enhancement) the neighbors, who Alan Stevens had interviewed and subpoenaed, told a different story. While all 5 of them agreed my client initiated the conflict by spitting in the cop’s face, they all testified that the cop punched my client in the neck, after which my client punched him in the face, knocking out 2 of his teeth.

Judge Einhorn, sitting as the Magistrate, found the neighbor’s version of events to be credible and the cop and his girlfriend’s version not credible. Accordingly, he ruled that the punch which caused the injuries was self-defense. Einhorn then dismissed all the felony charges and the GBI enhancements, but held my client to answer on one misdemeanor assault count (PC 240) and one misdemeanor battery count (PC 242).

How sweet it is!

– Mike McCabe

San Diego Criminal Defense Attorney Michael J. McCabe