Case Number(s): 10-C-01221
In the Matter of: Richard V. Monahan, Bar # 82410, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1004
Bar #194283,
Counsel for Respondent: In Pro Per Respondent
Richard V. Monahan
Attorney At Law
2616 South “K" Street
Bakersfield, CA 93304
(661) 398-3089
Bar # 82410
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: November 23, 2010.
<<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 November 29, 1978.
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):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2013, 2014. (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.
Additional aggravating circumstances: None.
Additional mitigating circumstances: None.
Attachment language (if any):
ATTACHMENT TO STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: RICHARD V. MONAHAN State Bar No. 82410
STATE BAR COURT CASE NUMBER: 10-C-01221
A. PARTIES ARE BOUND BY THE STIPULATED FACTS, CONCLUSIONS OF LAW AND DISPOSITION.
The parties intend to be and are hereby bound by the stipulated facts, conclusions of law, and disposition contained in this stipulation. This stipulation as to facts and the facts so stipulated shall independently survive even if the conclusion of law and/or stipulated dispositions set forth herein are rejected or changed in any manner whatsoever by the Hearing Department or the Review Department.
RICHARD V. MONAHAN ("Respondent") admits that the following facts are true and that he is culpable of a violation of the specified statute.
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 May 12, 2010, Respondent was convicted of violating Penal Code 243(a) [Battery], a misdemeanor.
3. On September 6, 2011, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and a decision as to whether the facts and circumstances surrounding the violation of which Respondent was convicted involved moral turpitude or other misconduct warranting discipline, and if so, the discipline to be imposed.
4. On September 15, 2011, the Hearing Department of the State Bar Court filed and served upon all parties herein, a Notice of Hearing on Conviction.
Facts Supporting Culpability:
5. In August 2009, Respondent purchased an auto part from AutoZone, a retail auto parts store. The part was approximately a two inch by two inch piece of metal with protruding metal prongs. The part was defective.
6. Respondent called the AutoZone located in Lamont, California and arranged to receive a new replacement part. Respondent also arranged for the replacement part to be sent to the AutoZone store in Bakersfield located on Brundage Lane because it was closer to his home.
7. On Sunday, August 9, 2009, Respondent drove to the AutoZone located on Brundage Lane to exchange the defective part, which he had with him, for the new replacement part. Respondent then entered the AutoZone.
8. When Respondent asked for his replacement part he was told by the female assistant store manager that she had returned the replacement part to the AutoZone in Lamont because it had not been picked up on Saturday. Respondent asked to speak to a supervisor but was told by the female assistant store manager that she was the supervisor. Then, Respondent became frustrated and insisted that the female assistant store manager drive to the Lamont AutoZone (which was about 30 miles away) and retrieves the replacement part for him. The manager refused to do this. Respondent became angry and started yelling at the female assistant store manager.
9. Then, Respondent threw the defective part and it struck the manager in the face, just above her left eye. The manager became dizzy and immediately fell to the ground. Respondent left the store and began to walk down the street.
10. Then, one of the AutoZone employees called the Bakersfield Police Department. An officer was dispatched and arrived shortly thereafter at the AutoZone location.
11. Since Respondent was a frequent customer of AutoZone, the AutoZone employees were able to retrieve Respondent’s phone number and provided it to the responding police officers.
12. Using the phone number provided by the AutoZone employees, the police officers were able to find an address where they believed they could find Respondent.
13. When the police officers arrived at the address which matched Respondent’s telephone number, they knocked on the door and asked for Respondent. Respondent’s wife answered and then opened the door to let the police officers into the home.
14. Then, Respondent came out of an adjacent room. The police officers immediately advised Respondent that he was under arrest for assault with a deadly weapon and placed him in handcuffs. Then, Respondent and asked the officers, "Can you just cite me out?" The police officers refused Respondent’s request and took him into custody.
15. After his arrest, one of the police officers explained to Respondent that when he threw the auto part it struck the AutoZone manager in the head. Respondent then stated, "oh, man, I was throwing it to the ground. If I had known it hit her I wouldn’t have left." Respondent then stated, "is she alright... I didn’t mean to hit her with it."
16. On August 21, 2009, the Kern County District Attorney filed a complaint in case number BM756823A charging Respondent with two counts. Count one was a misdemeanor violation of Penal Code section 245(a)(1) [Assault with a Deadly Weapon] and count two was a misdemeanor violation of Penal Code section 243(a) [Battery].
17. On May 12, 2010, after a jury trial, Respondent was found guilty of count two, but the jury was unable to reach a verdict as to count one and the trial court declared a mistrial as to count one. Thereafter, the district attorney dismissed count one in the furtherance of justice
pursuant to Penal Code section 1385. 18. On June 25, 2010, Respondent was sentenced to 20 days in custody with credit for 4 days time served and 4 days good and work time. However, imposition of this sentence was stayed pending Respondent’s successful completion of three years court probation, including 100hours of community service, a referral to the work release program and payment of fines, fees, penalties.
19. As of the present date, Respondent has complied with all of the terms of probation imposed by the court.
Conclusions of Law:
20. The facts and circumstances surrounding Respondent’s conviction for violation of Penal Code section 243(a) [Battery], a misdemeanor, involved other misconduct warranting discipline pursuant to Business and Professions Code, sections 6101 and 6102.
C. FACTS SUPPORTING MITIGATION.
1. Respondent has no prior record of discipline and had been admitted to the practice of law in California for over thirty (30) years when the misconduct herein occurred.
2. Respondent has exhibited candor and significant cooperation with the State Bar of California. During the pendency of this matter, Respondent cooperated with the State Bar, informally providing information that assisted the State Bar in its understanding of Respondent’s misconduct herein. Finally, Respondent also cooperated in that he has stipulated to facts, conclusions of law and level of discipline.
3. Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing. The State Bar is satisfied that Respondent’s remorse is genuine and demonstrates that Respondent has taken a significant and meaningful step towards ensuring that criminal or ethical misconduct will not recur in the future.
Standard 1.2(e)(i). Standard 1.2(e)(v). Standard 1.2(e)(vii).
4. Respondent’s good character has been attested to an attorney and two non-attorney members of the general community who are aware of the full extent of Respondent’s misconduct and believe that Respondent’s misconduct was aberrational and would not recur. In addition, Respondent has provided pro bono legal services to numerous clients and is active in his church as an usher and lay teacher.
D. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 3.4 states that the final "...conviction of a member 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 either misconduct warranting discipline shall result in a sanction as prescribed under part B of these Standards appropriate to the nature and extent of the misconduct found to have been committed by the member.
Aggravating & Mitigating Circumstances:
Standard. 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist. There are no aggravating circumstances in this matter.
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist. As discussed above, there are four mitigating circumstances in this matter. First, Respondent has no prior record of discipline. Second, Respondent has exhibited candor and significant cooperation with the State Bar of California.
Third, Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing. Fourth, Respondent’s good character has been attested to attorneys and non-attorney members of the general community who are aware of the full extent of Respondent’s misconduct.
Caselaw:
In Matter of Stewart, the Review Department considered and affirmed a decision by the Hearing Department which found that an attorney’s misdemeanor conviction for violation of Penal Code section 243(c) [Battery on a Police Officer] did not involve moral turpitude but rather involved other misconduct warranting discipline.
In Stewart, attorney Stewart and his wife, who were separated, lived in different apartments in the same building and shared custody of their 18-month old son. One evening, shortly before picking up his son for a visitation, attorney Stewart consumed a couple drinks of a 100-proof alcoholic beverage. Attorney Stewart then picked up his son for visitation, but because the electricity in his apartment had been turned off and darkness upset his son, attorney Stewart returned to his wife’s apartment intending to continue his visitation there. His wife refused to permit the visitation ton continue in her apartment and when attorney Stewart started to leave to return to his apartment, his wife grabbed the boy from him and tried to close the door but was unable. Attorney Stewart, who was an experienced family law lawyer, insisted that he had a legal right to visit his son in his wife’s apartment and cited Penal Code sections to intimidate his way into his wife’s apartment. Unknown to Respondent, someone in his wife’s apartment had already called the police.
Two uniformed police officers subsequently responded to the scene and told attorney Stewart that he would have to leave his wife’s apartment because his wife did not want him there. At first attorney Steward cooperated, but then refused to leave without his son. One of the officers reached for Respondent’s arm to escort him out, but attorney Stewart jerked his arm away. Then, when the police officer again attempted to reach for his arm, attorney Stewart grabbed the police officer in a "bear hug." A struggle ensued but ultimately the police officer and his partner were able to subdue attorney Stewart and place him in handcuffs. During the struggle the police officer’s uniform shirt was torn and both the police officer and attorney Stewart sustained cuts and bruises. Then, while waiting to transport attorney Stewart to a hospital for treatment, attorney Stewart became abusive and directed profanities and racial epithets toward one of the police officers who was African-American.
The Review Department agreed with the Hearing Department-that attorney Stewart’s entire course of conduct surrounding his conviction was inexcusable and demonstrated an adequate basis for finding misconduct warranting discipline. Specifically, the Review
Department found that: 1) attorney Stewart admitted drinking 100-proof alcohol prior to his visitation with his son; 2) visited with his son while under the influence of alcohol; 3) trespassed into his wife’s apartment and remained after she asked him to leave; 4) cited code sections to intimidate his wife; 5) grabbed the responding police officer in a "bear hug"; 6) continued to struggle with the officer until being subdued; 7) continued his hostility toward the police officers while being driven from the scene; and 8) used racial epithets against one of the officers.
The Review Department also noted that given attorney Stewart’s family law background he should have been aware that a great risk of injury to persons in family disputes occurs when the police officers that were called in to restore order are themselves threatened with harm. The Review Department also stated that instead of using his experience and knowledge to diffuse a risky domestic incident, attorney Stewart created one with serious risk of harm. Then, citing In re Otto, the Review Department found that attomey Stewart’s conduct was disciplinable.
In assessing discipline, the Review Department considered attorney Stewart’s prior record of discipline (a 90-day actual suspension) and indifference to the seriousness of his conduct and potential harm to others as aggravating factors and participation in the State Bar proceedings as mitigating. Also, the Review Department declined to apply Standard 1.7(a) literally and determined that because the prior discipline had not been imposed until after attorney Stewart’s criminal conviction it could not have had any effect on his behavior. (1989) 48 Cal.3d 970.
Ultimately, the Review Department recommended that attorney Stewart be suspended from the practice of law for two years, that execution of that suspension be stayed and that he be placed on probation for two years, including that attorney Stewart be actually suspended for the first sixty days.
In the current matter, Respondent committed battery in a retail auto parts store by throwing a metal object at the face of employee and then walked out. Respondent’s action created a serious risk of injury and harm because of the potentially deadly nature of a metallic object striking a person’s face. In fact, had the object struck the victim one inch lower blindness or at the very least serious injury to the eye would have resulted. Further, Respondent as a in experience criminal defense attorney should have been aware of the illegality of his dangerous conduct as well as the inappropriateness of his leaving the scene of the incident.
However, unlike the attorney in Stewart, Respondent did not add any further criminal conduct to the initial battery and was cooperative when he was arrested. Further, unlike the attorney in Stewart, Respondent’s misconduct herein is much more mitigated. Specifically, Respondent has no prior record of discipline in over 30 years of practice, has been pro-actively candid and cooperative with the State Bar and has expressed genuine remorse for his criminal conduct. Further, Respondent good character has been attested to by both attorney and non-attorney members of the community and who uniformly support the notion that Respondent’s criminal conduct was aberrational and not likely to recur.
Therefore, pursuant to the applicable Standards, consideration of the mitigating circumstances and comparison with relevant caselaw precedent, the facts and circumstances surrounding Respondent’s criminal conviction do not involve moral turpitude but do involve other misconduct warranting discipline, namely, a stayed suspension with a significant term of probation.
E. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was October 28, 2011.
F. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that as of October 28, 2011, the estimated prosecution costs in this matter are approximately $1,636.00. Respondent acknowledges that this figure is an estimate only. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 10-C-01221
In the Matter of: Richard Vincent Monahan
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.)
Signed by:
Judge of the State Bar Court: Richard Honn
Date: 11-21-11
CERTIFICATE OF SERVICE
[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 November 23, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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:
Richard Vincent Monahan
Richard Monahan
2616 S K St
Bakersfield, CA 93304
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ashod Mooradian, Enforcement, Los Angeles
Courtesy copy:
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on
November 23, 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court