Jon Warshawsky recovery

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Mike Wilson
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Re: Jon Warshawsky recovery

#31 Post by Mike Wilson »

Thanks for the update, Jim.

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Re: Jon Warshawsky recovery

#32 Post by Charles H Jacobus »

Erich Wagner wrote:...from better times...

https://www.youtube.com/watch?v=VCByjUYrv1g
Ironic, the end of the film says "Drive tastefully"; something everyone should do and the other driver was evidently not doing. Reminds me of the statement the actor James Dean made in an interview just before his death - something like: drive safely, the life you save may be mine.

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Jim Nelson
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Re: Jon Warshawsky recovery

#33 Post by Jim Nelson »

Jim Alton wrote:I got an e-mail from the San Diego DA's update service. Ms. Chois' trial [case CD266279] is now scheduled:

Felony Other Motion Hearing scheduled for Jan 19 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in Department 1001.

Felony Jury Trial scheduled for Jan 29 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in Department 1001.

The San Diego Sheriff's "Who's in Jail" says the charges she's facing are:
  • 23153(E) VC DUI Drugs: Bodily Injury (Bond: $ 3,000,000)
  • 191.5(A) PC Gross Vehicle Manslaughter
  • 187(A) PC Murder: First Degree
First Degree ? That’s a bad call n the DA’s part, that would have to include intent.

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Charles H Jacobus
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Re: Jon Warshawsky recovery

#34 Post by Charles H Jacobus »

Well, also Manslaughter.

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Re: Jon Warshawsky recovery

#35 Post by Jim Alton »

jim nelson wrote:
Jim Alton wrote:I got an e-mail from the San Diego DA's update service. Ms. Chois' trial [case CD266279] is now scheduled:

Felony Other Motion Hearing scheduled for Jan 19 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in Department 1001.

Felony Jury Trial scheduled for Jan 29 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in Department 1001.

The San Diego Sheriff's "Who's in Jail" says the charges she's facing are:
  • 23153(E) VC DUI Drugs: Bodily Injury (Bond: $ 3,000,000)
  • 191.5(A) PC Gross Vehicle Manslaughter
  • 187(A) PC Murder: First Degree
First Degree ? That’s a bad call n the DA’s part, that would have to include intent.
Previous accounts said Second Degree but that's what "Who's in Jail" says. It might be a website quirk.
 
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Re: Jon Warshawsky recovery

#36 Post by Peter Silten »

Unless the driver acted with premeditation and deliberation -- i.e., simply put, she intended to use her car as a weapon to kill someone -- the most she can be prosecuted for is second degree murder. Here is a quick primer on the applicable law:

Drunk driving resulting in a fatality may be prosecuted under several different theories. From least severe to most severe they are: vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated, and murder with implied malice.

Manslaughter is the unlawful killing of a human being without malice. In its current form, gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140 [driving under the influence under age 21], 23152 [driving under the influence], or 23153 [driving under the influence with bodily injury] of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

The mental state required to support a conviction of gross vehicular manslaughter is as follows: Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don't care what happens.” The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. Notably, the mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. Instead, the jury examines all the relevant circumstances, including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct in order to determine whether defendant's conduct rises to the level of gross negligence, as opposed to mere inadvertence. The level of intoxication is particularly relevant because one who drives with a very high level of intoxication is indeed more negligent, more dangerous, and thus more culpable than one who drives near the legal limit of intoxication, just as one who exceeds the speed limit by 50 miles per hour exhibits greater negligence than one who exceeds the speed limit by 5 miles per hour.

By creating the gross vehicular manslaughter offense, the Legislature sought to punish severely those who operate a vehicle when their physical and mental faculties are impaired by voluntary alcohol consumption. When the Legislature enacted Penal Code section 191.5, it stated: “The Legislature finds and declares that traffic accidents are the greatest cause of violent death in the United States and that over one-half of the ensuing fatalities are alcohol related. . . . In view of the severe threat to public safety which is posed by the intoxicated driver, there is a compelling need for more effective methods to identify and penalize those who voluntarily consume alcoholic beverages to the point of legal intoxication and thereafter operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of exerting great force and speed and causing severe damage and death.” Currently, a conviction of gross vehicular manslaughter carries a punishment of 4, 6, or 10 years in state prison for the first offense, and 15 years to life for a second offense.

In exceptional circumstances, a person who, knowing the hazards of drunk driving, drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second degree murder under an implied malice theory. In order to establish implied malice, the prosecution must show that a defendant was subjectively aware of the risk of death created by driving while intoxicated. It is not enough that a reasonable person would have been aware of the risk. As one court explained, “[t]he distinction between ‘conscious disregard for life’ and ‘conscious indifference to the consequences' is subtle but nevertheless logical. Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifference to the consequences is simply, ‘I don't care what happens.’ It makes sense to hold the former more culpable than the latter, since only the former is actually aware of the risk created.” (Citation omitted.)

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Mike Wilson
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Re: Jon Warshawsky recovery

#37 Post by Mike Wilson »

Thanks, Peter. Is California law consistent with other states in this area?

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Re: Jon Warshawsky recovery

#38 Post by Rhys and Karisa Haydon »

Hey all,
Does anyone know if Jon is still receiving mail? If so, what is the current address?
So sorry to see this, and I hope his recovery continues to go well.
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Jim Alton
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Re: Jon Warshawsky recovery

#39 Post by Jim Alton »

I got this from the San Diego County DA's office:

------------------------------

From: District Attorney Case Notification [mailto:DistrictAttorneyCaseNotification@sdcda.org]
Sent: Tuesday, December 19, 2017 12:48 AM
To: jim.alton@....
Subject: Case Event Notification - San Diego County District Attorney

THE FOLLOWING EVENT(S) HAVE BEEN REMOVED FROM CASE CD266279:

The event "Felony Other Motion Hearing" scheduled for Jan 19 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in department 1001 has been Vacated.

The event "Felony Jury Trial" scheduled for Jan 29 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in department 1001 has been Vacated.

THE FOLLOWING EVENT(S) HAVE BEEN ADDED FOR CASE CD266279:

Further Proceedings scheduled for Feb 9 2018 9:00AM at the San Diego Superior Court, Central Division, Central Courthouse in Department 1001.

Note:
Please do not reply to this message. Replies will not be processed.
For further information, please go to CaseInformation.sdcda.org
 
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Jon Schmid
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Re: Jon Warshawsky recovery

#40 Post by Jon Schmid »

So, Jim, is this just legalese saying that the proceedings have been postponed basically a week?

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Re: Jon Warshawsky recovery

#41 Post by Jim Alton »

Jon Schmid wrote:So, Jim, is this just legalese saying that the proceedings have been postponed basically a week?
I don’t think it’s that simple. No trial’s scheduled but there are “further proceedings” 2 weeks after the trial had been scheduled.

Maybe there’s plea bargain negotiations, maybe something else.
 
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Re: Jon Warshawsky recovery

#42 Post by Craig Richter »

Peter, It was my understanding that this defendant had been previously convicted TWICE of DUI. Under the three strikes rule (or some such banner, I'm not a lawyer), doesn't Ms. Chois come under the implied malice theory and should be prosecuted for (at least) 2nd degree murder? I hope so.
 

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Re: Jon Warshawsky recovery

#43 Post by Vic Skirmants »

Craig Richter wrote:Peter, It was my understanding that this defendant had been previously convicted TWICE of DUI. Under the three strikes rule (or some such banner, I'm not a lawyer), doesn't Ms. Chois come under the implied malice theory and should be prosecuted for (at least) 2nd degree murder? I hope so.
+2

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Re: Jon Warshawsky recovery

#44 Post by Steve Harrison »


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Re: Jon Warshawsky recovery

#45 Post by Peter Silten »

The elements of driving under the influence causing injury are (1) driving a vehicle while under the influence of an alcohol beverage or drug; (2) when so driving, committing some act which violates the law or fails to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. A conviction of second degree murder requires a finding of malice aforethought. Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. A person who, knowing the hazards of drunk driving, drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second degree murder under an implied malice theory. A finding of implied malice, unlike a finding of gross negligence, depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. Even if the act results in a death that is accidental the circumstances surrounding the act may evince implied malice.

It is common in drunk driving murder cases for the prosecution to introduce evidence of prior reckless or drunk driving incidents for the purpose of showing defendant's knowledge of the associated risks and hazards. Courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway -- whether provoked by the use of alcohol or of another intoxicant -- sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum.

Jon’s lawsuit against the City of San Diego, alleging that the City is partly to blame for the crash, muddies the waters and may well be an aspect of the defendant’s defense – i.e., the accident was caused by the dangerous road conditions irrespective of the defendant’s intoxication, which the defense may seek to downplay as a significant proximate cause of the accident.

Craig, this is not a “three strikes” case as far as the three strikes law is concerned. If the defendant is convicted of, e.g., voluntary manslaughter, that would constitute a first strike.

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