Case Number(s): 08-C-13011
In the Matter of: ROBERT W. WILEY, Bar # 64883, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan Chan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
Bar # 233229,
Counsel for Respondent: In Pro Per, Robert W. Wiley
4265 Lakeshore Blvd,Space 14
Lakeport, CA 95423
Bar # 64883
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: February 2, 2011.
<<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 August 21, 1975.
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 10 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.
Costs are awarded to the State Bar.
<<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.
9. ORDER
OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: ROBERT W. WILEY, State Bar No. 64883
STATE BAR COURT CASE NUMBER: 08-C-13011
Facts
1. On June 25, 2008, respondent was charged with four felony counts of knowing possession or control of child pornography, in violation of Penal Code section 311.11 (a), in Superior Court of California, Lake County, Case No. CR913362.
2. The underlying facts of the charges are as follows: Respondent was an attorney who regularly appeared in Department A of Lake County Superior Court on Juvenile Dependency matters (W&I 300 et seq. and W&I 600 et seq.). On February 27, 2007, respondent appeared in Department A of Lake County Superior Court. On February 27, 2007, a bailiff found a "thumb drive"-- a small portable device for storing digital data, in Department A of Lake County Superior Court. An examination of the device established that it contained numerous images which depicted sexual conduct of persons under the age of 18 within the meaning of Penal Code section 311.4(d). The device also contained legal documents generated by respondent. On September 20, 2007, a Lake County search warrant was served on respondent at his law office. The Lake County search warrant also included respondent’s home. Digital images discovered on respondent’s computers established numerous images which depicted sexual conduct of persons under the age of 18 within the meaning of Penal Code section 311.4(d).
3. Following a preliminary hearing on August 28, 2008, respondent was charged with two felony counts of knowing possession or Control of child pornography, in violation of Penal Code Section 311.11 (a), in Superior Court of California, Lake County, Case No. CR913362.
Count I
On or about February 27, 2007, respondent was in possession of digital images stored on one silver Ivo Magic Gig A Bank (USB 1) of a person under the age of 18 years old personally engaging in and simulating sexual conduct as defined in Penal Code section 311.4(d).
Count II
On or about September 20, 2007, respondent was in possession of digital images stored on one USB Drive; digital images stored on one Hitachi drive serial no. EL54UDAN and one Western digital external hard drive, serial no. WCANK6641865; digital images stored on one Seagate drive, serial no. 4LRS 1FMN and one Maxtor hard drive, serial no. Y355T3AE, the production of which involved a person under the age of 18 years old personally engaging in and simulating sexual conduct as defined in Penal Code section 311.4(d).
4. On January 9, 2009, respondent plead guilty to Count I, and was convicted of a violation of Penal Code section 311.11 (a), knowing possession of child pornography, a felony, in Superior Court of California, Lake County, Case No. CRg13362. Count II was dismissed as part of the plea agreement.
Penal Code section 311.1 l(a) provides as follows:
"(a) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4 is guilty of a felony and shall be punishable by imprisonment in state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
Penal Code Section 311.4 provides as follows:
"(d)(1) As used in subdivisions (b) and (c), "sexual conduct" means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined by Section 288, or excretory functions performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.
"(2) As used in subdivisions (b) and (c), "matter" means any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, or any other computer-related equipment or computer generated image that contains or incorporates in any manner, any film, filmstrip, photograph, negative, slide, photocopy, videotape, or video laser disc."
5. On February 27, 2009, respondent was sentenced to a jail term of 120 days to be served on home detention, three (3) years formal, supervised probation, payment of fees, and mandatory registration as a sex offender pursuant to Penal Code section 290.
6. On April 20, 2009, the State Bar Court Review Department placed respondent on interim suspension from the practice of law pursuant to Business and Professions Code section 6102(a) pending the finality of this conviction and the completion of the ensuing disciplinary proceedings against him.
7. On or about July 30, 2009, respondent’s resignation with charges pending was filed with the State Bar Court.
8. On August 3, 2009, the State Bar Court Hearing Department placed the case on abatement pending the outcome of the resignation proceedings.
9. On December 1, 2010, the Supreme Court of California issued an order rejecting respondent’s resignation with charges pending (S 178003) and remanded the underlying matter to the State Bar Court Hearing Department for a hearing and disposition.
Conclusions of Law
Respondent’s conviction of a violation of Penal Code section 311.11 (a), knowing possession of child pornography, a felony involves serious violations of moral standards in willful violation of Business and Professions Code section 6068(a) and 6106.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was January 19, 2011.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(ii): Respondent’s misconduct of downloading and possession of numerous images depicting sexual conduct of persons under the age of 18 years old within the meaning of Penal Code section 311.4(d) evidences multiple acts of wrongdoing.
Standard 1.2(b)(iii): Respondent’s misconduct was surrounded by bad faith and dishonesty. Respondent’s knowing possession or control of child pornography, in violation of Penal Code section 311.11 (a), is dishonest and violates intrinsic moral standards of society.
Standard 1.2(b)(iv): Respondent’s misconduct caused significant harm to the victim(s), the public, and administration of justice. Respondent’s knowing possession or control of child pornography, in violation of Penal Code section 311.11 (a), violates intrinsic moral standards of society and inherently facilitates harm to children.
MITIGATING CIRCUMSTANCES
There are no mitigating circumstances.
SUPPORTING AUTHORITY
Standard 3.2 requires disbarment upon final conviction of a member of a crime which involves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission. Only if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a two-year actual suspension, prospective to any interim suspension imposed, irrespective of mitigating circumstances.
"Moral turpitude has been described as ’an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman." In re Craig (1938) 12 Cal.2d 93, 97, see also Chadwick v. State Bar (1989) 49 Cal.3d 103, 110).
United States v. Santa Cruz (9th Cir. 2009) 563 F.3d 894, holding as a matter of first impression that felony possession of child pornography in violation of the federal statute constitutes moral turpitude for purposes of immigration law.
New York v. Ferber (1982) 458 U.S. 747, 756-758.
People v. Kongs (1994) 30 Cal.4th 1741, 1748-1749, 1754.
Matter of Disciplinary Proceedings Against Bruckner (1991) 161 Wis.2d 385,467 N.W.2d 780 (importation and trading of child pornography involved moral turpitude); In the Matter of Wolff (D.C. 1985) 490 A.2d 1118, vacated 494 A.2d 932 (D.C. July 11, 1985), reasoning adopted on banc 511 A.2d 1047 (D.C. June 30, 1986) (conviction for distribution of child pornography involved moral turpitude).
Case Number(s): 09-O-13110,09-O-13232,09-O-13341,09-O-16497, 09-O-17608, 09-O-17860, 10-O-05893
In the Matter of: Nicholas Chavarela
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: Nicholas Chavarela
Date: January 21, 2011
Respondent’s Counsel: Richard C. Gibert
Date: January 21, 2011
Deputy Trial Counsel: Timothy G. Byer
Date: January 25, 2011
Case Number(s): 08-C-13011
In the Matter of: Robert W. Wiley
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:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
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.)
Respondent Robert W. Wiley is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: February 2, 2011
[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 San Francisco, on February 2, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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 San Francisco, California, addressed as follows:
ROBERT WAYNE WILEY
4265 LAKESHORE BLVD SPC 14
LAKEPORT, CA 95453
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN CHAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 2, 2011.
Signed by:
Laine Silber
Case Administrator
State Bar Court