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Trapper

Transcript of the Sentencing Hearing Held Octomer 13, 2000 for James Schmerker

(NOTE: The following is a re-transcribed copy of the transcript of the October 13th sentencing hearing for trapper James Schmerker. It is not an official transcript and is not guaranteed to be correct in all details.)

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA
WALNUT CREEK

NO. 110925-5
DA NO. C 00 000177-6
COMPLAINT - MISDEMEANOR

01) B&P 8550 (a)
02) B&P 8550 (a)

THE PEOPLE OF THE STATE OF CALIFORNIA,

VS.

JAMES CARMICHAEL SCHMERKER JR,
DEFENDANT./

________________________________________________

The undersigned states, on information and belief, that JAMES CARMICHAEL SCHMERKER JR, Defendant, did commit a misdemeanor, a violation of BUSINESS & PROFESSIONS CODE SECTION 8550 (a) (PRACTICING STRUCTURAL PEST CONTROL WITHOUT A LICENSE), committed as follows:

On or about December, 1999, in Contra Costa County, the Defendant, JAMES CARMICHAEL SCHMERKER JR, did wilfully and unlawfully engage in or offer to engage in the business of, act in the capacity of, or advertise himself as, and engaged in or offered to engage in the practice of pest control without a license, issued by the Department of Pesticide Regulation.

COUNT TWO:

The undersigned further states, on information and belief, that JAMES CARMICHAEL SCHMERKER JR, Defendant, did commit a misdemeanor, a violation of BUSINESS & PROFESSIONS CODE SECTION 8550 (a) (PRACTICING STRUCTURAL PEST CONTROL WITHOUT A LICENSE), committed as follows:

On or about January, 2000, in Contra Costa County, the Defendant, JAMES CARMICHAEL SCHMERKER JR, did wilfully and unlawfully engage in or offer to engage in the business of, act in the capacity of, or advertise himself as, and engaged in or offered to engage in the practice of pest control without a license, issued by the Department of Pesticide Regulation.

COMPLAINANT REQUESTS THAT DEFENDANT(S) BE DEALT WITH ACCORDING TO LAW. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
DATED: January 14, 2000 AT MARTINEZ, CALIFORNIA

_____________________________
D. BARRETT
COMPLAINANT

____________________________
JOSEPH A. MOTTA/ad
DEPUTY DISTRICT ATTORNEY CONTRA COSTA COUNTY ANIMAL CONTROL
SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA

WALNUT CREEK LOCATION

BEFORE THE HONRABLE BRUCE VAN VOORHIS, JUDGE

DEPARTMENT NO. 24

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No. 110925-5

CHARGES:
B&P 8550 (a)
B&P 8550 (a)

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

-vs-

JAMES CARMICHAEL SCHMERKER, JR.,

Defendant.

_____________________________________________

REPORTER'S TRANSCRIPT OF PROCEEDINGS
SENTENCING

Walnut Creek Superior Court
640 Ygnacio Valley Road
Walnut Creek, California
OCTOBER 13, 2000

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A P P E A R A N C E S:

For the People: GARY T. YANCEY,
District Attorney
By: KEVIN SMITH
Deputy District Attorney
Contra Costa County

For the Defendant: RONI ROTHOLZ
Attorney at Law
1870 Olympic Boulevard
Walnut Creek, CA 94596

ANDREA BOWERS
C.S.R. NO. 10375
Official Court Reporter

OCTOBER 13, 2000 MORNING SESSION

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P R O C E E D I N G S

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THE COURT: Is the defendant charged in his true name?

MR. ROTHOLZ: On the complaint, which is S-C-H-M-E-R-

K-E-R, he is charged correctly.

MR. SMITH: Your Honor, the People will be moving to amend the date of offense of Count One of the -- on the complaint to allege December 1999 through January 2000 in exchange for the defendant's plea to that count of Business and Professions Code 8550 (a).
We'll dismiss the second count.
The defendant will receive a three-year probation sentence, a $350 fine, and 90 days in the county jail concurrent to the felony sentence he has already been sentenced on.
MR. ROTHOLZ: That is our understanding, Your Honor.
MR. SMITH: And before the sentencing takes place, I have a letter from Mildred Grothman to you, Your Honor.
I have taken the liberty of reading it, and she has requested that Leroy Moyer of Voices for Pets be allowed to speak briefly on her behalf and on the behalf of the other victims who have lost their animals as friends in this incident.
THE COURT: Any objection?
MR. ROTHOLZ: No, Your Honor.
THE COURT: He may address the court.
MR. SMITH: Mr. Moyer, please stand.
MR. MOYER: Right here?
THE COURT: That's fine. You can state your name.
MR. MOYER: Yes, sir. My name is Leroy Moyer, and I'm a director of a group called Voices for Pets.
First of all, I want to thank you for allowing me to speak today on behalf of the family and the victims. I am speaking because of the 1988 Victim's Impact Law allowing victims to have the voice in court before sentencing, and I'm hoping that that's not an empty law.
I'm hoping that you haven't already made up your mind about what you're going to do. I'm hoping that you will at least listen to what I have to say and consider not accepting this plea bargain.
What Mr. Schmerker has done he has done for years. He has done -- he's killed a number of family pets. He uses these body-crushing traps in residential neighborhoods between houses, in storm drains, on pathways. These are cruel, very dangerous devices.
In Danville, the cat that was killed -- four days earlier, there was a dog that was severely injured in one of these traps set by Schmerker. He did not remove these traps. He left those traps there, and four days later, a family cat was killed. The same thing goes on and on through -- in other cities throughout the bay area.
In Lafayette, after Mrs. Grothman's -- an elderly lady whose companion animal was killed, Schmerker left the traps there. He's doing this intentionally, knowing that he's killing family pets.
On the unrelated case, the felony conviction for which he is in custody now, during sentencing on that, he sat in the courtroom and stared at me across the court. It's a stare I've seen before. It's the stare that says, "I'm going to get you."
He finally walked all the way across the courtroom, sat down right next to me, put his face six inches from mine and continued to stare. The bailiff at that time had to tell him to back away and go back and sit down on the other side of the court.
This man has no remorse. He has no intention of stopping his behavior. He has no respect or concern for other beings, both animals and human. I'm asking -- and he also has -- as you know, he has a long criminal history.
I'm asking that you take all of that into consideration before passing sentence today. This plea bargain calls for 90 days but to run concurrently for time he's already serving in a totally unrelated case. That's not only two for the price of one, it's many over the years for the price of one.
If you look at his criminal record, you'll see that he's been sliding through the cracks for along time, and I'm asking that you give the families in this case some justice by adding some actual jail time for Mr. Schmerker.
Thank you.
THE COURT: You're welcome. Anything else?
MR. ROTHOLZ: No, Your Honor.
MR. SMITH: Nothing, Your Honor.
THE COURT: What is the sentence that he is receiving on his other case?
MR. SMITH: It's 180 days. Mr. Rotholz is his attorney. He can better state it for me.
MR. ROTHOLZ: It's 180 days, three years formal probation, 180 days, which he may do in EHD if he so qualifies.
THE COURT: This is the plea bargain?
MR. SMITH: It is, Your Honor.
THE COURT: I'll permit it.
MR. SMITH: Thank you.
MR. ROTHOLZ: Thank you, Your Honor.
THE COURT: You're James Schmerker, Jr.?
THE DEFENDANT: Yes.
THE COURT: As to the amended charge in Count One that on or about December 1999 through January, year 2000, in this county, you willfully and unlawfully engaged in practicing structural pest control without a license in violation of Business and Professions Code Section 8550, Subdivision A, as charged in Count One, what is your plea?
THE DEFENDANT: No contest.
THE COURT: On a no contest plea, I'll find you guilty and sentence you as though you are guilty; understand?
THE DEFENDANT: Yes.
THE COURT: You have a lawyer now. You could ask for time to prepare; understand?
THE DEFENDANT: Yes.
THE COURT: You have the right to a speedy and public jury trial or court trial; understand?
THE DEFENDANT: Yes.
THE COURT: Give that up?
THE DEFENDANT: Yes.
THE COURT: You have the right to remain silent. You do not have to incriminate yourself; understand?
THE DEFENDANT: Yes.
THE COURT: Give that up?
THE DEFENDANT: Yes.
THE COURT: You have the right to see and question the witnesses; understand?
THE DEFENDANT: Yes.
THE COURT: Give that up?
THE DEFENDANT: Yes.
THE COURT: You have the right to produce evidence with the help of the court; understand?
THE DEFENDANT: Yes.

THE COURT: Give that up?
THE DEFENDANT: Yes.
THE COURT: Are you aware of the possible consequences?
THE DEFENDANT: Yes.
THE COURT: Are you doing this of your own free will?
THE DEFENDANT: Yes.
THE COURT: Do you admit that the facts show you are guilty?
THE DEFENDANT: Yes.
THE COURT: I so find the defendant understands the charges, consequences and rights freely waived.
I find you guilty, 8550 (a) of the Business and Professions Code.
Count Two is now dismissed.
MR. SMITH: Thank you.
THE COURT: Is there restitution to be ordered?
MR. SMITH: I would like it reserved.
THE COURT: Are there victims to be contacted?
MR. SMITH: The victims -- the family of the owners of the animals, yes.
THE COURT: I'll have my court probation officer conduct an investigation.
MR. SMITH: Thank you.
THE COURT: Understand, Mr. Schmerker?
THE DEFENDANT: Yes.
THE COURT: We would have a future hearing to determine whether or not monies should be paid.
Four weeks enough?
MR. ROTHOLZ: Yes.
THE COURT: We'll select a date. Mr. Rotholz, make sure it's clear on your calendar.
THE CLERK: November 13th.
THE COURT: Will that work for you?
MR. ROTHOLZ: It will.
THE COURT: At 8:30. I'll order it be referred to my court probation officer, so she may contact the victims.
THE CLERK: And he should be brought?
THE COURT: On November 13th at 8:30, he should be produced.
Is it now submitted for sentencing?
MR. ROTHOLZ: Yes, Your Honor.
MR. SMITH: Yes, Your Honor.
THE COURT: Court probation is granted and final sentencing is postponed for three years on these agreed upon terms: Pay $350. Either pay within 45 days or pay an additional $35 fee and pay within 12 months in monthly installments. Pay the fine to the Collections and Compliance Unit. If unable to pay, tell them. Inform them of any change of address within ten days.
Provide income and expense information upon request.
Serve a sentence of 90 days.
Is he claiming credits?
MR. ROTHOLZ: Yes. Six days, Your Honor.
THE COURT: He's awarded six days credit on a 90-day sentence.
He's committed to the custody of the sheriff until service of that sentence is complete. That sentence may be run concurrent with any other sentence now being served.
You must obey all laws and follow all orders of this Court.
Report any change of address within ten days by writing to this Court.
Do not engage in pest control without a license.
Produce any such license upon request of any peace officer at any time.
Do you accept these terms?
THE DEFENDANT: Yes.
THE COURT: Should you violate the terms and conditions of probation, then, after hearing, you could be sentenced up to the worst possible penalty; understand?
THE DEFENDANT: Yes.
THE COURT: Mr. Rotholz, you were retained?
MR. ROTHOLZ: I was, Your Honor.
THE COURT: We'll conduct further proceedings November 13th at 8:30.
MR. ROTHOLZ: Thank you, Your Honor.
Your Honor, regarding his custodial situation, as we explained the other day, he appeared at EHD to qualify on the other sentence, and because this matter was pending, he was remanded.
What we would like to ask the Court to do is allow him to be released so he can report to EHD and attempt to qualify.
THE COURT: Is he held on the other case?
MR. ROTHOLZ: He is held on this case.
THE COURT: And this case only?
MR. ROTHOLZ: Yes, Your Honor.
THE COURT: Do you want to be heard?
MR. SMITH: No, Your Honor. I agree.
THE COURT: I'll allow you to apply for electronic home detention.
You must contact the sheriff's custody alternative bureau within two weeks to determine your eligibility and obtain permission to participate.
Begin your sentence on the date designated by the custody alternative bureau or else a warrant will be issued for your arrest.
If ineligible for alternatives to custody, then you must report to the main jail, 1000 Ward Street, in Martinez; agreed?
THE DEFENDANT: Agreed.
THE COURT: You'll have to go back to the jail and get your property before you are released.
MR. ROTHOLZ: Thank you, Your Honor.
THE COURT: It's your obligation to apply for electronic home detention.
That takes care of it for today.
Return November 13th at 8:30.

(Whereupon, the proceedings were concluded.)

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