Case Number(s): 08-C-11929-RAH
In the Matter of: Surekha Melissa Weinber , Bar # 244039, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kristin L. Ritsema
Senior Trial Counsel
Office of the Chief Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015-2299
(213) 765-1235
Bar # 149966
Counsel for Respondent: Ralph Peretz
5737 Kanan Road, No. 613
Agoura Hills, CA 91301
(818) 986-9651
Bar # 55999
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted September 12, 2006.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 13 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
With respect to the events leading up to Respondent’s arrest and conviction as discussed herein, according to Respondent, Respondent and her brother, Eric Senis, with whom she did not live, shared a dog. The dog was living with Respondent. The dog was of old age and became seriously ill. The dog was hospitalized in Santa Monica, and the hospital advised Respondent that the dog would not eat and was likely to die. On Saturday, November 3, 2007, Respondent and her brother met at the hospital in Santa Monica in an attempt to get the dog to eat. Afterwards, they went to the brother’s house and had dinner and began drinking. They were commiserating over the condition of the dog as well as other family issues. Later in the evening, when Respondent knew she had had too much to drink to drive, she tried to contact her friend to come pick her up. When this was unsuccessful, at about 10:00 p.m., she decided to stay to sleep at her brother’s house rather than drive at that time. After sleeping for approximately six hours, Respondent woke up at approximately 3:00 a.m. (Due to the end of daylight savings time, clocks were set back one hour at 2:00 a.m. on November 4, 2007.) According to Respondent, she felt sufficiently sober to drive, but she didn’t rely merely on her own judgment. She also used the formula that she had been taught in her prior DUI class to calculate her blood level based on the average elimination rates, and based on her calculations, she felt she was capable of driving. Although her judgment and calculations were wrong, Respondent states that she did not consciously disregard the safety of others.
According to Respondent, she has not had any alcohol since November 3, 2007.
a. Reporting to the Office of Probation:
i. While Respondent remains incarcerated, Respondent must submit written semi-annual reports to the Office of Probation on each October 10 and April 10 during the period of probation. In each report, Respondent must state under penalty of perjury whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceeding calendar half-year period covered by the report. It is understood by the parties that Respondent’s first required report will likely be due by October 10, 2012 and will cover the period from the commencement of her probation until the report is due, a period of less than one-half of a year.
ii. In addition to all semi-annual reports required above, Respondent must submit to the Office of Probation a final report, containing the same information as set forth above, no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of probation.
iii. Should Respondent be released from prison prior to the expiration of the period of probation imposed herein, Respondent must notify the Office of Probation in writing within ten (10) days of her release. In addition, should Respondent be released from prison prior to the expiration of the period of probation imposed herein, Respondent must thereafter submit written quarterly reports, containing the same information as set forth above, to the Office of Probation on each January 10, April 10, July 10 and October 10 for the remainder of the period of probation. Said quarterly reports will be required in place of the semi-annual reports listed above.
b. Ethics School: During the period of actual suspension, and prior to the filing of a petition pursuant to Standard 1.4(c)(ii), Respondent must attend a session of State Bar Ethics School, pass the test given at the end of such session, and provide satisfactory proof of same to the State Bar’s Office of Probation.
c. Conditions imposed in underlying criminal matter: Should she be released from prison prior to the expiration of the period of probation imposed herein, Respondent must comply with all terms and conditions of parole imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report filed with the Office of Probation.
d. No substance abuse conditions are being required as part of the probation herein because Respondent has been incarcerated since February 2009 and will continue to be incarcerated for several more years.
Attachment language (if any):
IN THE MATTER OF: Surekha Melissa Weinburg, State Bar No. 244039
STATE BAR COURT CASE NUMBER: 08-C-11929-RAH
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 08-C-11929 (Conviction Proceedings)
A. PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On April 8, 2008, an Information was filed against Respondent in the Los Angeles County Superior Court, case number SA066131. On January 29, 2009, an Amended Information was filed against Respondent. The Amended Information charged Respondent with four felonies: murder in violation of Penal Code section 187(a) (Count 1); gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5(a) (Count 2); driving under the influence of alcohol and/or a drug and causing bodily injury in violation of Vehicle Code section 23153(a) with a prior conviction of Vehicle Code section 23152(a) (Count 3); and driving with a blood alcohol content of .08% or more and causing bodily injury with a prior conviction of Vehicle Code section 23152(a) in violation of Vehicle Code section 23153 (b) (Count 4). The Amended Information included special allegations as to Counts 3 and 4 that Respondent proximately caused bodily injury to four victims in violation of Vehicle Code section 23558 and personally inflicted great bodily injury to three victims in violation of Penal Code section 12022.7(a).
3. On January 30, 2009, Respondent pled "not guilty" to all four counts of the Amended Information.
4. The matter was tried to a jury, and on February 19, 2009, the jury found Respondent guilty as to Count 2-- gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5(a); Count 3--driving under the influence of alcohol and/or a drug and causing bodily injury with a prior conviction of Vehicle Code section 23152(a) in violation of Vehicle Code section 23153(a); and Count 4--driving with a blood alcohol content of .08% or more and causing bodily injury with a prior conviction of Vehicle Code section 23152(a) in violation of Vehicle Code section 23153(b). The jury also found the special allegations with respect to Counts 3 and 4 to be true. The jurors’ verdicts as to Counts 2, 3 and 4 were read on February 20, 2009. Respondent was then remanded into custody. Respondent has remained in custody since February 20, 2009.
5. On February 25, 2009, the jury reached impass as to Count 1--murder in violation of Penal Code section 187(a). The court declared a mistrial as to Count 1 only.
6. Respondent initially was sentenced on March 20, 2009. However, on May 6, 2009, pursuant to a plea bargain, Count 1 was dismissed in furtherance of justice pursuant to Penal Code section 1385 based on amended sentence as to Count 2. Respondent was then sentenced as follows. With respect to Count 2, Respondent was sentenced to 16 years in state prison. This included an "upper term" sentence of 10 years as the base term plus 3 years consecutive for two separate victims for a total of 6 years pursuant to Penal Code section 12022.7. Respondent was given credit for 170 days in custody, including 148 days of actual custody plus 22 days for good time/work time. With respect to Count 3, Respondent was sentenced to 12 years in state prison, to run concurrently with the sentence imposed in Count 2. This included an "upper term" sentence of 3 years as the base term plus 3 years for three separate victims for a total of 9 years pursuant to Penal Code section 12022.7. With respect to Count 4, sentence was stayed pursuant to Penal Code section 654, with the stay to become permanent upon completion of the sentence imposed in Count 2.
7. On October 22, 2009, Respondent filed a notice of appeal, appealing only the issue of sentencing credits. However, on October 28, 2010, the Court of Appeal dismissed Respondent’s appeal, finding that Respondent had waived her right to appeal her sentence as part of the plea bargain. The remittitur was issued on December 28, 2010. Respondent’s conviction is now final. 8. Subsequently, Respondent filed a writ of habeas corpus challenging her sentence but not her conviction. The writ is still pending.
9. On April 7, 2010, the Review Department of the State Bar Court issued an order pursuant to Business and Professions Code section 6102 that Respondent be suspended from the practice of law effective April 25, 2010 pending final disposition of this disciplinary matter. The Review Department further ordered that Respondent comply with rule 9.20 of the California Rules of Court. Respondent has remained on interim suspension since April 25, 2010.
10. On June 9, 2011, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department pursuant to rule 9.10(a) of the California Rules of Court, for a hearing and decision recommending discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding Respondent’s felony convictions involved moral turpitude or other misconduct warranting discipline.
B. FACTS AND CIRCUMSTANCES SURROUNDING THE CONVICTION:
1. On November 3, 2007, Respondent spent the evening at her brother’s house in Santa Monica, California. The two had dinner and drank alcohol. According to Respondent, she slept at her brother’s house from approximately 10:00 p.m. on November 3, 2007 until approximately 3:00 a.m. on November 4, 2007. Respondent left her brother’s house in Santa Monica at shortly after 3:00 a.m. and began to drive to her home in Van Nuys, California.
2. On November 4, 2007, at approximately 3:10 a.m., Respondent drove her vehicle the wrong way onto the Santa Monica Freeway (I-10), traveling eastbound in the westbound traffic lanes. Respondent caused a front-end to front-end collision with another vehicle that was traveling westbound on the Santa Monica Freeway west of Cloverfield Boulevard.
3. There were five people in the vehicle that Respondent struck. Hsiao Wen Wang, who was 19 years old at the time, was the driver of the vehicle. Four of his friends were passengers: Mung Fei Hung, who was 19 years old; Chak Hang Ma, who was 18 years old; Kang-Ling Liao, who was 21 years old; and Jia-Chi Liao, who was 20 years old. Hsiao Wen Wang was pronounced dead at the scene. All four passengers suffered injuries, some of them serious.
4. When the police arrived at the scene of the accident, an officer interviewed Respondent, smelled a "strong odor of an alcoholic beverage," and observed that her eyes were red and watery and her speech was slow. A California Highway Patrol ("CHP") officer who conducted an interview with Respondent noted a mild odor odor of breath alcohol. The CHP officer asked Respondent to complete field sobriety tests. According to the CHP report, Respondent failed to perform these tests in a satisfactory manner. The officer formed the opinion that Respondent had been driving while under the influence of an alcoholic beverage and arrested her. Respondent’s blood was drawn, and her blood alcohol level was .23%.
5. Witnesses, CHP reports, and a defense expert stated that it was foggy on the night of the collision, and another defense expert stated that street signs were missing and confusing, all of which may have been contributing factors in the accident.
6. Four and a half years prior to the November 2007 accident, on March 27, 2003, Respondent pled nolo contendere and was convicted of driving under the influence of alcohol in violation of Vehicle Code section 23152(a), a misdemeanor. The imposition of sentence was suspended, and Respondent was placed on summary probation for a period of 36 months on certain terms and conditions, including completion of a three-month first-offender alcohol and other drug education and counseling program and attendance at ten AA meetings. Respondent complied with the conditions of her probation. On May 19, 2006, the court granted Respondent’s motion pursuant to Penal Code sections 1203.4 and 1203.4a and ordered that the plea, verdict or findings of guilt be set aside and vacated, that a plea of not guilty be entered, and the complaint be dismissed.
C. CONCLUSIONS OF LAW:
The facts and circumstances surrounding the above-described violations did not involve moral turpitude but did involve other misconduct warranting discipline.
FACTS SUPPORTING AGGRAVATION.
A. Harm:
Respondent’s misconduct resulted in the death of one victim and irreparably damaged the lives of that victim’s family members and friends. In addition, Respondent misconduct resulted in injuries to four other victims.
FACTS SUPPORTING MITIGATION.
A. Candor/Cooperation:
Respondent has cooperated with the State Bar during the disciplinary proceeding and in entering into this comprehensive stipulation as to facts, conclusions of law, and disposition, thereby eliminating the necessity for a trial in this matter.
B. Remorse:
Respondent’s automobile insurance policy had a limit of $300,000, which was paid to the victims, and each of the victims signed a release. Respondent, through her counsel, Ralph Peretz, cooperated fully with her insurance company to facilitate prompt payment to the victims. According to Mr. Peretz, Respondent never contested liability and insisted that the full amount of the policy be paid. A lawsuit was filed by plaintiffs to learn the policy limits of Respondent’s insurance even though Respondent and her attorney told them the policy limits up front. Plaintiffs also filed the lawsuit against the California State Department of Transportation alleging that poor road signage contributed to the accident. According to Mr. Peretz, he and Respondent cooperated with plaintiffs in their lawsuit against the third party. Plaintiffs’ counsel confirmed Respondent’s cooperation. Respondent acknowledges that $300,000 in no way provided near full compensation to the victims and their families.
Shortly after her incarceration on December 4, 2007 pending posting of bail, Respondent wrote a letter to the family of the deceased victim in which she expressed her sorrow for their loss, expressed that she was truly sorry, and stated that she wished that her life had been taken rather than the victim’s. In the letter, Respondent stated that she did not ask their forgiveness as she would never be able to forgive herself. Respondent’s criminal defense counsel at the time refused to allow the letter to be forwarded to the victims at that time. It was provided later, at the time of sentencing.
C. Good Character:
At the time of sentencing in the underlying criminal matter, several people from the legal and general community who knew Respondent well submitted to the court character letters in support of Respondent, including: Laurie L. Levenson, Professor of Law & William M. Rains Fellow, Director of the Center for Ethical Advocacy, Loyola Law School; Thomas V. Johnston, Attorney; Harry Schmiedeke, Vice President of Sales, Guardian General Insurance Services, Inc.; Suresh Veeramachaneni, M.D., Respondent’s brother; Simone Stoller, retired medical doctor; Jospehine Coltrara, Respondent’s Catholic baptisim sponsor or Godparent; Harold S. Fleischman, Attorney; and Zshonette Reed, Attorney. Ms Levenson testified at the trial and submitted a letter during sentencing stating that Respondent had expressed sincere remorse; that Respondent was a good, selfless, and caring person who would never intentionally harm anyone; that Respondent had always put the welfare of others ahead of her own; that she had never known Respondent to be anything but scrupulously honest; that if there was anything Respondent could do to help others, she had done it; that Respondent was a gentle, introverted and compassionate person; that Respondent was bright and worked very hard; that Respondent would never be a threat to anyone; and that Respondent’s was a life worth saving.
In connection with this disciplinary proceeding, Respondent’s attorney, Ralph Peretz, also submitted a letter attesting to Respondent’s good character.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was April 27, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct ("Standard(s)") provides that the primary purposes of disciplinary proceedings and of sanctions imposed upon a finding or acknowledgment of professional misconduct are the protection of the public, the courts, and the legal profession; the maintenance of high professional standards by attorneys; and the preservation of public confidence in the legal profession.
Standard 3.4 provides that final conviction of an attorney of a crime which does not involve moral turpitude inherently or in the facts and circumstances surrounding the crime’s commission but which does involve other misconduct warranting discipline shall result in a sanction as prescribed elsewhere in the standards appropriate to the nature and extent of the misconduct found to have been committed by the attorney.
The parties submit that the stipulated discipline herein is appropriate to the nature and extent of the misconduct committed by Respondent and is adequate to protect the public, courts and the legal profession.
SIGNATURE OF THE PARTIES
Case Number(s): 08-C-11929-RAH
In the Matter of: Surekha Melissa Weinberg
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Surekha Melissa Weinberg
Date: April 28, 2012
Respondent’s Counsel: Ralph Peretz
Date: April 28, 2012
Deputy Trial Counsel: Kristin L. Ritsema
Date: May 11. 2012
Case Number(s): 08-C-11929
In the Matter of: Surekha Melissa Weinberg
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
On p. 6, F. (5) Other Conditions - Delete the months of "October" and "April" and replace them with
"January" and "July," such that respondent must submit semi-annual reports on each January 10 and July 10 during the period of probation.
On p. 7, the second line - Delete "will likely be due by October 10, 2012" and replace it with "will be due on January 10, 2013." In the same paragraph, delete "a period of less than one-half of a year."
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: May 29, 2012
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and
County of Los Angeles, on June 4, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
RALPH LESLIE PERETZ
LAW OFFICE OF RALP PERETZ
5737 KANAN RD #613
AGOURA HILLS, CA 91301
<<not>> checked. by certified mail, No., with return receipt requested, through the United States Postal Service at, California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kristin L. Ritsema, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 4, 2012.
Signed by:
Cristina Potter
Case Administrator
State Bar Court