Tracian
04-14-2009, 06:06 PM
Ellen Schwarzenberg is the PD
Here is an article, seems she is assigned to the Mental Health court:
STOCKTON -- San Joaquin County Deputy District Attorney Thomas Testa said in recent years he has prosecuted too many murderers with previously diagnosed mental health problems and is tired of it.
In each case, Testa said, a person died under heinous circumstances while the killer goes to state prison or a mental hospital. Countless relatives grieve because the defendant failed to stay on prescribed psychological drugs, he said.
Testa wonders if a local agency could have stepped in. He said he holds family members responsible for failing to make their mentally ill relatives take prescribed medicine.
"I suggest they even go so far as to count the pills," he said.
But the situation is not that simple, said attorneys and psychologists who work with San Joaquin County residents struggling with mental illnesses. The percentage of mentally ill people committing violent crimes is low but usually gains public notoriety.
"Like any minority group, people suffering from mental illnesses are painted with a broad brush as criminals," said Ellen Schwarzenberg, a San Joaquin County deputy public defender assigned to the mental health court.
Mental illness, which results from a chemical imbalance in a person's brain, should be treated as a disease and not criminal behavior, she said. Police don't understand the problem and frequently take a person to jail rather than to mental health treatment facilities, she said.
Testa said crimes committed by mentally ill people make national headlines, punctuating those local cases he prosecutes. He cited four Stockton cases in the past couple of years:
Wayne Osborg Jr., 32, was convicted and sentenced to two consecutive life sentences in August for bludgeoning two men when he didn't show up at a treatment home for his mental illness.
Khanh Duy Phan, then 34, was convicted in March 2004 for decapitating his 18-month-old daughter and sentenced to state prison for 26 years to life.
Peter Nhim, then 18, was convicted in October 2004 of second-degree murder in the stabbing death of a 9-year-old family friend.
Robin Rials, then 17, pleaded guilty to first-degree murder in March 2004 but avoided prison after a judge ruled she was insane when she set fire to an abandoned trailer where a man slept.
Linda Collins, a court liaison for San Joaquin County Behavior Health Services, bemoaned a stigma that mentally ill people are criminals rather than fighting a chronic illness. She urges better education, especially for law enforcement and court officials.
Collins managed a program focused on treating mentally ill inmates in the County Jail. The program was successful at reducing recidivism but funding dried up with budget cuts in recent years, she said.
Proposition 63, passed by voters last year, promises to turn the tide for mentally ill people caught in the legal system, she said. It taxes Californians earning more than $1 million annually to fund programs for mentally ill people.
"I work with those people who have done heinous things," she said. "But I've also seen people return and recover to a full and productive life."
Contact reporter Scott Smith at 209 546-8296 or ssmith@recordnet.com
http://www.recordnet.com/apps/pbcs.dll/article?AID=/20051124/NEWS01/511240312/1001
awakening2lite
04-14-2009, 06:42 PM
http://i244.photobucket.com/albums/gg21/awakening2lite/M%20Huckaby/MHuckabycharges.jpg
EXCERPT ~ California 288
288. (a) Any person who willfully and lewdly commits any lewd orlascivious act, including any of the acts constituting other crimesprovided for in Part 1, upon or with the body, or any part or memberthereof, of a child who is under the age of 14 years, with the intentof arousing, appealing to, or gratifying the lust, passions, orsexual desires of that person or the child, is guilty of a felony andshall be punished by imprisonment in the state prison for three,six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)by use of force, violence, duress, menace, or fear of immediate andunlawful bodily injury on the victim or another person, is guilty ofa felony and shall be punished by imprisonment in the state prisonfor three, six, or eight years.
(2) Any person who is a caretaker and commits an act described insubdivision (a) upon a dependent person by use of force, violence,duress, menace, or fear of immediate and unlawful bodily injury onthe victim or another person, with the intent described insubdivision (a), is guilty of a felony and shall be punished byimprisonment in the state prison for three, six, or eight years. (c) (1) Any person who commits an act described in subdivision (a)with the intent described in that subdivision, and the victim is achild of 14 or 15 years, and that person is at least 10 years olderthan the child, is guilty of a public offense and shall be punishedby imprisonment in the state prison for one, two, or three years, orby imprisonment in a county jail for not more than one year. Indetermining whether the person is at least 10 years older than thechild, the difference in age shall be measured from the birth date ofthe person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described insubdivision (a) upon a dependent person, with the intent described insubdivision (a), is guilty of a public offense and shall be punishedby imprisonment in the state prison for one, two, or three years, orby imprisonment in a county jail for not more than one year. (d) In any arrest or prosecution under this section or Section288.5, the peace officer, district attorney, and the court shallconsider the needs of the child victim or dependent person and shalldo whatever is necessary, within existing budgetary resources, andconstitutionally permissible to prevent psychological harm to thechild victim or to prevent psychological harm to the dependent personvictim resulting from participation in the court process. (e) Upon the conviction of any person for a violation ofsubdivision (a) or (b), the court may, in addition to any otherpenalty or fine imposed, order the defendant to pay an additionalfine not to exceed ten thousand dollars ($10,000). In setting theamount of the fine, the court shall consider any relevant factors,including, but not limited to, the seriousness and gravity of theoffense, the circumstances of its commission, whether the defendantderived any economic gain as a result of the crime, and the extent towhich the victim suffered economic losses as a result of the crime.Every fine imposed and collected under this section shall bedeposited in the Victim-Witness Assistance Fund to be available forappropriation to fund child sexual exploitation and child sexualabuse victim counseling centers and prevention programs pursuant toSection 13837. If the court orders a fine imposed pursuant to this subdivision,the actual administrative cost of collecting that fine, not to exceed2 percent of the total amount paid, may be paid into the generalfund of the county treasury for the use and benefit of the county. (f) For purposes of paragraph (2) of subdivision (b) and paragraph(2) of subdivision (c), the following definitions apply: (1) "Caretaker" means an owner, operator, administrator, employee,independent contractor, agent, or volunteer of any of the followingpublic or private facilities when the facilities provide care forelder or dependent persons: (A) Twenty-four hour health facilities, as defined in Sections1250, 1250.2, and 1250.3 of the Health and Safety Code. (B) Clinics. (C) Home health agencies. (D) Adult day health care centers. (E) Secondary schools that serve dependent persons andpostsecondary educational institutions that serve dependent personsor elders. (F) Sheltered workshops. (G) Camps. (H) Community care facilities, as defined by Section 1402 of theHealth and Safety Code, and residential care facilities for theelderly, as defined in Section 1569.2 of the Health and Safety Code. (I) Respite care facilities. (J) Foster homes. (K) Regional centers for persons with developmental disabilities. (L) A home health agency licensed in accordance with Chapter 8(commencing with Section 1725) of Division 2 of the Health and SafetyCode. (M) An agency that supplies in-home supportive services. (N) Board and care facilities. (O) Any other protective or public assistance agency that provideshealth services or social services to elder or dependent persons,including, but not limited to, in-home supportive services, asdefined in Section 14005.14 of the Welfare and Institutions Code. (P) Private residences. (2) "Board and care facilities" means licensed or unlicensedfacilities that provide assistance with one or more of the followingactivities: (A) Bathing. (B) Dressing. (C) Grooming. (D) Medication storage. (E) Medical dispensation. (F) Money management. (3) "Dependent person" means any person who has a physical ormental impairment that substantially restricts his or her ability tocarry out normal activities or to protect his or her rights,including, but not limited to, persons who have physical ordevelopmental disabilities or whose physical or mental abilities havesignificantly diminished because of age. "Dependent person"includes any person who is admitted as an inpatient to a 24-hourhealth facility, as defined in Sections 1250, 1250.2, and 1250.3 ofthe Health and Safety Code. (g) Paragraph (2) of subdivision (b) and paragraph (2) ofsubdivision (c) apply to the owners, operators, administrators,employees, independent contractors, agents, or volunteers working atthese public or private facilities and only to the extent that theindividuals personally commit, conspire, aid, abet, or facilitate anyact prohibited by paragraph (2) of subdivision (b) and paragraph (2)of subdivision (c). (h) Paragraph (2) of subdivision (b) and paragraph (2) ofsubdivision (c) do not apply to a caretaker who is a spouse of, orwho is in an equivalent domestic relationship with, the dependentperson under care. 288.1. Any person convicted of committing any lewd or lasciviousact including any of the acts constituting other crimes provided forin Part 1 of this code upon or with the body, or any part or memberthereof, of a child under the age of 14 years shall not have his orher sentence suspended until the court obtains a report from areputable psychiatrist, from a reputable psychologist who meets thestandards set forth in Section 1027, as to the mental condition ofthat person. 288.2. (a) Every person who, with knowledge that a person is aminor, or who fails to exercise reasonable care in ascertaining thetrue age of a minor, knowingly distributes, sends, causes to be sent,exhibits, or offers to distribute or exhibit by any means,including, but not limited to, live or recorded telephone messages,any harmful matter, as defined in Section 313, to a minor with theintent of arousing, appealing to, or gratifying the lust or passionsor sexual desires of that person or of a minor, and with the intentor for the purpose of seducing a minor, is guilty of a public offenseand shall be punished by imprisonment in the state prison or in acounty jail. A person convicted of a second and any subsequent conviction for aviolation of this section is guilty of a felony. (b) Every person who, with knowledge that a person is a minor,knowingly distributes, sends, causes to be sent, exhibits, or offersto distribute or exhibit by electronic mail, the Internet, as definedin Section 17538 of the Business and Professions Code, or acommercial online service, any harmful matter, as defined in Section313, to a minor with the intent of arousing, appealing to, orgratifying the lust or passions or sexual desires of that person orof a minor, and with the intent, or for the purpose of seducing aminor, is guilty of a public offense and shall be punished byimprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for aviolation of this section is guilty of a felony. (c) It shall be a defense to any prosecution under this sectionthat a parent or guardian committed the act charged in aid oflegitimate sex education. (d) It shall be a defense in any prosecution under this sectionthat the act charged was committed in aid of legitimate scientific oreducational purposes. (e) It does not constitute a violation of this section for atelephone corporation, as defined in Section 234 of the PublicUtilities Code, a cable television company franchised pursuant toSection 53066 of the Government Code, or any of its affiliates, anInternet service provider, or commercial online service provider, tocarry, broadcast, or transmit messages described in this section orperform related activities in providing telephone, cable television,Internet, or commercial online services. 288.5. (a) Any person who either resides in the same home with theminor child or has recurring access to the child, who over a periodof time, not less than three months in duration, engages in three ormore acts of substantial sexual conduct with a child under the age of14 years at the time of the commission of the offense, as defined insubdivision (b) of Section 1203.066, or three or more acts of lewdor lascivious conduct under Section 288, with a child under the ageof 14 years at the time of the commission of the offense is guilty ofthe offense of continuous sexual abuse of a child and shall bepunished by imprisonment in the state prison for a term of 6, 12, or16 years. (b) To convict under this section the trier of fact, if a jury,need unanimously agree only that the requisite number of actsoccurred not on which acts constitute the requisite number. (c) No other felony sex offense involving the same victim may becharged in the same proceeding with a charge under this sectionunless the other charged offense occurred outside the time periodcharged under this section or the other offense is charged in thealternative. A defendant may be charged with only one count underthis section unless more than one victim is involved in which case aseparate count may be charged for each victim. 288a. (a) Oral copulation is the act of copulating the mouth of oneperson with the sexual organ or anus of another person. (b) (1) Except as provided in Section 288, any person whoparticipates in an act of oral copulation with another person who isunder 18 years of age shall be punished by imprisonment in the stateprison, or in a county jail for a period of not more than one year. (2) Except as provided in Section 288, any person over the age of21 years who participates in an act of oral copulation with anotherperson who is under 16 years of age is guilty of a felony. (c) (1) Any person who participates in an act of oral copulationwith another person who is under 14 years of age and more than 10years younger than he or she shall be punished by imprisonment in thestate prison for three, six, or eight years. (2) Any person who commits an act of oral copulation when the actis accomplished against the victim's will by means of force,violence, duress, menace, or fear of immediate and unlawful bodilyinjury on the victim or another person shall be punished byimprisonment in the state prison for three, six, or eight years. (3) Any person who commits an act of oral copulation where the actis accomplished against the victim's will by threatening toretaliate in the future against the victim or any other person, andthere is a reasonable possibility that the perpetrator will executethe threat, shall be punished by imprisonment in the state prison forthree, six, or eight years. (d) Any person who, while voluntarily acting in concert withanother person, either personally or by aiding and abetting thatother person, commits an act of oral copulation (1) when the act isaccomplished against the victim's will by means of force or fear ofimmediate and unlawful bodily injury on the victim or another person,or (2) where the act is accomplished against the victim's will bythreatening to retaliate in the future against the victim or anyother person, and there is a reasonable possibility that theperpetrator will execute the threat, or (3) where the victim is atthe time incapable, because of a mental disorder or developmental orphysical disability, of giving legal consent, and this is known orreasonably should be known to the person committing the act, shall bepunished by imprisonment in the state prison for five, seven, ornine years. Notwithstanding the appointment of a conservator withrespect to the victim pursuant to the provisions of theLanterman-Petris-Short Act (Part 1 (commencing with Section 5000) ofDivision 5 of the Welfare and Institutions Code), the prosecutingattorney shall prove, as an element of the crime described underparagraph (3), that a mental disorder or developmental or physicaldisability rendered the alleged victim incapable of giving legalconsent. (e) Any person who participates in an act of oral copulation whileconfined in any state prison, as defined in Section 4504 or in anylocal detention facility as defined in Section 6031.4, shall bepunished by imprisonment in the state prison, or in a county jail fora period of not more than one year. (f) Any person who commits an act of oral copulation, and thevictim is at the time unconscious of the nature of the act and thisis known to the person committing the act, shall be punished byimprisonment in the state prison for a period of three, six, or eightyears. As used in this subdivision, "unconscious of the nature ofthe act" means incapable of resisting because the victim meets one ofthe following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the actoccurred. (3) Was not aware, knowing, perceiving, or cognizant of theessential characteristics of the act due to the perpetrator's fraudin fact. (4) Was not aware, knowing, perceiving, or cognizant of theessential characteristics of the act due to the perpetrator'sfraudulent representation that the oral copulation served aprofessional purpose when it served no professional purpose. (g) Except as provided in subdivision (h), any person who commitsan act of oral copulation, and the victim is at the time incapable,because of a mental disorder or developmental or physical disability,of giving legal consent, and this is known or reasonably should beknown to the person committing the act, shall be punished byimprisonment in the state prison, for three, six, or eight years.Notwithstanding the existence of a conservatorship pursuant to theprovisions of the Lanterman-Petris-Short Act (Part 1 (commencing withSection 5000) of Division 5 of the Welfare and Institutions Code),the prosecuting attorney shall prove, as an element of the crime,that a mental disorder or developmental or physical disabilityrendered the alleged victim incapable of giving consent. (h) Any person who commits an act of oral copulation, and thevictim is at the time incapable, because of a mental disorder ordevelopmental or physical disability, of giving legal consent, andthis is known or reasonably should be known to the person committingthe act, and both the defendant and the victim are at the timeconfined in a state hospital for the care and treatment of thementally disordered or in any other public or private facility forthe care and treatment of the mentally disordered approved by acounty mental health director, shall be punished by imprisonment inthe state prison, or in a county jail for a period of not more thanone year. Notwithstanding the existence of a conservatorshippursuant to the provisions of the Lanterman-Petris-Short Act (Part 1(commencing with Section 5000) of Division 5 of the Welfare andInstitutions Code), the prosecuting attorney shall prove, as anelement of the crime, that a mental disorder or developmental orphysical disability rendered the alleged victim incapable of givinglegal consent. (i) Any person who commits an act of oral copulation, where thevictim is prevented from resisting by any intoxicating or anestheticsubstance, or any controlled substance, and this condition was known,or reasonably should have been known by the accused, shall bepunished by imprisonment in the state prison for a period of three,six, or eight years. (j) Any person who commits an act of oral copulation, where thevictim submits under the belief that the person committing the act isthe victim's spouse, and this belief is induced by any artifice,pretense, or concealment practiced by the accused, with intent toinduce the belief, shall be punished by imprisonment in the stateprison for a period of three, six, or eight years. (k) Any person who commits an act of oral copulation, where theact is accomplished against the victim's will by threatening to usethe authority of a public official to incarcerate, arrest, or deportthe victim or another, and the victim has a reasonable belief thatthe perpetrator is a public official, shall be punished byimprisonment in the state prison for a period of three, six, or eightyears. As used in this subdivision, "public official" means a personemployed by a governmental agency who has the authority, as part ofthat position, to incarcerate, arrest, or deport another. Theperpetrator does not actually have to be a public official. (l) As used in subdivisions (c) and (d), "threatening to retaliate"means a threat to kidnap or falsely imprison, or to inflict extremepain, serious bodily injury, or death. (m) In addition to any punishment imposed under this section, thejudge may assess a fine not to exceed seventy dollars ($70) againstany person who violates this section, with the proceeds of this fineto be used in accordance with Section 1463.23. The court shall,however, take into consideration the defendant's ability to pay, andno defendant shall be denied probation because of his or herinability to pay the fine permitted under this subdivision.
http://caselaw.lp.findlaw.com/cacodes/pen/281-294.html
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