Issue:  Vol. 44 / No. 35 / 28 August 2014
 

Gascón ‘very disappointed’ in Diaz manslaughter verdict

District Attorney George Gascon (Photo: Rick Gerharter)

District Attorney George Gascón  (Photo: Rick Gerharter)

San Francisco District Attorney George Gascón said Thursday (August 28) that he’s “very disappointed” that the man who’d been accused of intentionally choking to death another man in Buena Vista Park in 2011 was convicted of involuntary manslaughter rather than murder this week.

“We put a lot of effort into the case,” Gascón told the Bay Area Reporter at an editorial board meeting Thursday. “We would not have charged the case as murder unless we believed it was murder.”

Jurors announced Tuesday, August 26 that they’d found David Munoz Diaz, 25, guilty on the manslaughter charge, as well as arson, mutilating human remains, and destroying evidence in the death of Freddy Canul-Arguello. Canul-Arguello’s charred, mostly naked body was found near a melted recycling bin in the park June 10, 2011.

Gascón said prosecutors are “trying to assess what else we could have done” to have gotten a murder conviction. Some jurors said after the verdict was announced that they hadn’t been convinced that Diaz had intended to kill Canul-Arguello, so they’d passed on a first-degree murder conviction. The jury also didn’t convict him of second-degree murder, another option, because they didn’t feel Diaz had shown conscious disregard for Canul-Arguello’s life, some jurors said Tuesday.

Gascón said his office had assigned one of its top prosecutors – Assistant District Attorney Danielle Douglas – to the case, and police had done a “good investigation.”

However, Gascón also didn’t want to criticize the jurors.

“They did their work and we respect them and thank them for it,” he said.

During the trial, Diaz testified that he’d accidentally killed Canul-Arguello during a sexual encounter in the park.

“We will ask for the maximum sentence,” Gascón said, but “the consequences are not the consequences we were seeking. Looking at his time served, he could be very well almost ready to walk.”

Diaz has been in jail since his arrest more than three years ago in July 2011.
The maximum sentence for involuntary manslaughter is four years. However, Diaz may be sentenced to less time than that, according to Deputy Public Defender Alex Lilien. Among the factors in the time he could serve, Diaz may be able to serve time concurrently for the other convictions.

“He’s likely done all the time they could sentence him to,” Lilien has said.

Diaz’s next court date is September 3, when Lilien will ask that he be released before his sentencing.

Lilien has repeatedly referred to Canul-Arguello’s death as “a terrible accident,” while Douglas insisted that Diaz had strangled him after flying into a rage.

Diaz had moved in with Larry Metzger, owner of the Castro bar The Mix, shortly before he killed Canul-Arguello and during his testimony referred to Metzger, who regularly attended the trial, as his partner.

— Seth Hemmelgarn, August 28, 2014 @ 3:38 pm PST
Filed under: Uncategorized


Man hits woman with bottle in Castro fight

San Francisco police are looking for a man who hit a woman with a bottle in the Castro Wednesday night, August 27.

The incident occurred at 7 p.m. at 18th and Castro streets when the suspect, a white male in his 30s, approached the woman, 63, “and started a verbal argument,” Officer Gordon Shyy, a spokesman for the San Francisco Police Department, said in a summary.

The fight “got heated” and the man “pulled out a glass bottle” and hit the woman with it. He then fled east on 18th. Shyy said the woman complained of pain to her head and arm, but “refused medical treatment.”

Anyone with information in the case may call the police department’s anonymous tip line at (415) 575-4444, or text a tip to 847411 and type SFPD, then the message. The incident number is 140 721 835.

— Seth Hemmelgarn, @ 9:57 am PST
Filed under: Uncategorized


Diaz found guilty of involuntary manslaughter in gay SF park death trial

David Diaz in an undated photo. (Photo: Courtesy Public Defender's office)

David Diaz in an undated photo. (Photo: Courtesy Public Defender’s office)

A San Francisco jury has found David Diaz guilty of involuntary manslaughter and other charges stemming from the death of a man he had sex with in a city park three years ago.

Prosecutors had charged Diaz, 25, with murder for intentionally choking to death Freddy Canul-Arguello, 23, during a sexual encounter in Buena Vista Park in 2011. But the jury instead decided to go with the lesser charge.

After taking a week to deliberate, the jury issued its decision this afternoon, Tuesday, August 26. The jurors also found Diaz guilty of arson, mutilating human remains, and destroying evidence.

Canul-Arguello’s burned, mostly naked body was found in the park just before 5 a.m. June 10, 2011. The medical examiner’s office listed the cause of death as asphyxia due to strangulation.

Jurors got the case Monday, August 18, three weeks after attorneys in the case made their opening statements.

Diaz, who’s been in custody since his arrest, testified through a Spanish interpreter last week that he and Canul-Arguello had met up in the Castro just hours before the death, decided to have sex, and walked to the park.

They performed oral sex and other acts on each other, and Canul-Arguello asked to be choked, Diaz said. He said he eventually agreed, then noticed at some point that Canul-Arguello had stopped moving. He unsuccessfully tried to revive him, he said.

During the trial Deputy Public Defender Alex Lilien repeatedly called the case “a terrible accident.” Assistant District Attorney Danielle Douglas said in her closing arguments that Diaz killed Canul-Arguello after he “did something that caused the defendant to go into a rage,” and then intentionally burned the body.

See this Thursday’s Bay Area Reporter for more coverage of the verdict.

— Matthew S. Bajko, August 26, 2014 @ 2:35 pm PST
Filed under: Uncategorized


Jurors ask to view bin in park death case

Jurors deliberating charges related to the death of a man in San Francisco’s Buena Vista Park in 2011 asked Thursday, August 21, to take another look at a melted recycling bin that was found with the man’s charred body.

Earlier in August, members of the jury in the murder trial of David Munoz Diaz visited the scene of the crime, near the tennis court in Buena Vista Park in the Haight. (Photo: Rick Gerharter)

Earlier in August, members of the jury in the murder trial of David Munoz Diaz visited the scene of the crime, near the tennis court in Buena Vista Park in the Haight. (Photo: Rick Gerharter)

David Munoz Diaz, 25, is accused of intentionally choking to death Freddy Canul-Arguello, 23, during a sexual encounter in the park June 10, 2011. Canul-Arguello’s body was found in the park just before 5 a.m. that morning. Diaz, who was arrested six weeks later, is charged with murder, arson, mutilating human remains, and destroying evidence.

After almost three weeks of testimony, jurors got the case Monday, August 18.

At about 10:30 a.m. Thursday, the bin was wheeled in to the room where the jury is deliberating at the Hall of Justice, 850 Bryant Street.

One side of the bin is almost completely melted away. Twigs and dirt are stuck to part of what’s left. The receptacle had briefly been shown in court earlier this month.

Diaz, who’s been in custody since his arrest, testified through a Spanish interpreter last week that he and Canul-Arguello had met up in the Castro just hours before the death, decided to have sex, and walked to the park.

They performed oral sex and other acts on each other, and Canul-Arguello asked to be choked, Diaz said. He said he eventually agreed, then noticed at some point that Canul-Arguello had stopped moving. He unsuccessfully tried to revive him, he said.

“I was frightened,” Diaz testified. “… I didn’t know what to do. I was really nervous.”

He said he moved the bin close to Canul-Arguello’s body and lit a fire in it to signal for help.

Deputy Public Defender Alex Lilien has repeatedly called the case “a terrible accident.” Assistant District Attorney Danielle Douglas said in her closing arguments Monday that Diaz killed Canul-Arguello after he “did something that caused the defendant to go into a rage,” and then intentionally burned the body.

Based on court testimony, the container had been on top of Canul-Arguello’s body when he was found. While discussing Canul-Arguello’s burns and other factors, Fire expert Jeff Campbell testified about the possibilities of the container having been placed on top of Canul-Arguello or near him, with the bin falling over on top of him, among other scenarios. Campbell said Canul-Arguello’s body had not been placed inside the 32-gallon receptacle.

 

 

— Seth Hemmelgarn, August 21, 2014 @ 3:11 pm PST
Filed under: Uncategorized


Police release video of person of interest in man’s death

higgins suspect

Person of interest in Higgins death (Photo: SFPD)

San Francisco police have released video of a “person of interest” in the death of Bryan Higgins, 31.

The video shows a man in a grey hoodie chasing Higgins across Church Street between Market Street and Duboce Avenue, then beginning to assault Higgins, according to Officer Albie Esparza, a spokesman for the San Francisco Police Department. In the footage, which was released Thursday, August 21, a black bar has been placed over Higgins.

Higgins, who was also known as Feather, was found near Church and Duboce at about 7:30 a.m. Sunday, August 10. He died at San Francisco General Hospital three days later after his family took him off life support.

Police also released an image of the person they’re looking for, who appears to be in his 20s or 30s, wearing just the red shirt that’s underneath the hoodie.

Esparza said the video came from the dashboard of a taxicab. He said he didn’t know whether the driver tried to intervene, but the cabbie turned the video into police.

Because of the camera angle, the video didn’t capture the rest of the attack on Higgins, Esparza said.

There were no obvious signs of trauma to Higgins when he was found at the scene, and it wasn’t until the footage was handed over to police that they began investigating the incident as an attempted homicide and assault with a deadly weapon. Once Higgins died, the case became a homicide investigation, Esparza said. He said he couldn’t comment on what injuries Higgins did have. It will likely be months before the medical examiner’s office releases the cause and manner of death.

Anyone with information in the case may call the police department’s anonymous tip line at (415) 575-4444, or text a tip to 847411 and type SFPD, then the message. The incident number is 140 665 807.

— Seth Hemmelgarn, @ 11:32 am PST
Filed under: Uncategorized


Prayer service planned for gay homicide victim

Bryan Higgins in an undated photo. Photo: Courtesy Bryan Higgins's Facebook page

Bryan Higgins in an undated photo. Photo: Courtesy Bryan Higgins’s Facebook page

A prayer service is planned for a gay man who recently died after being found injured in the Duboce Triangle neighborhood.

Bryan Higgins, 31, will be remembered at 11:15 a.m. Monday, August 18 at the corner of Church Street and Duboce Avenue. Higgins was found on the ground at the intersection at about 7:30 a.m. Sunday morning, August 10 and taken to San Francisco General Hospital. He died after being taken off life support at 3:33 p.m. Wednesday, August 13. At that time, around 200 people gathered at Duboce Park for a vigil.

A campaign has begun http://www.gofundme.com/d2snac to help Higgins’s family with funeral, medical, and other expenses. The goal is $5,000.

Albie Esparza, a spokesman for the San Francisco Police Department, has described the suspect in Higgins’s death as a white male in his 20s or 30s wearing a gray hoodie, based on video surveillance footage.

As of Friday afternoon, August 15, Esparza said police are still not releasing photos of the suspect, and there have been no arrests.

Esparza said Higgins’s injuries had been investigated as an attempted homicide and assault with a deadly weapon before he was taken off life support, and the case is now being investigated as a homicide.

He said Higgins “had injuries,” but he didn’t know what they were.

“There was no obvious traumatic injury” such as stabbing or gunshot wounds, he said.

It will likely be several months before the medical examiner’s office releases the cause and manner of Higgins’s death.

Higgins, who was a member of the Faerie community, was also known as Feather Lynn.

Like many people who knew Higgins, Linda, 65, who didn’t want her last name published because most people know her as “The Laundry Lady,” spoke of his kindness.

“He was a happy person, very kind to everyone,” she said. She manages a Laundromat near Higgins’s Noe Street home and had known him for about three or four years. “… He’d always say, ‘Good morning, Sunshine,’ which was really precious to me.”

Brian Busta, 50, was a close friend and neighbor of Higgins’s.

“He was just really super free-spirited” and “creative,” said Busta, who’s also known by his Faerie name, Chickpea. “He was really a joy to be around.”

Monday’s memorial is being held by the Restorative Justice Ministry for Victims and Survivors of Violent Crimes of the Archdiocese of San Francisco.

Julio Escobar, the ministry’s director, said part of his group’s aim is to “do a blessing of the land. We hope that somebody else doesn’t die there.” The ministry, which regularly does prayer services for victims of crime in the city, also tries to work with families to help them “in the process of healing.”

— Seth Hemmelgarn, August 15, 2014 @ 5:09 pm PST
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CA lawmakers pass Ting’s revised syringe access bill

2013 Ting Official headshot, Current

Assemblyman Phil Ting

The California Legislature has sent a bill to Governor Jerry Brown that will ensure intravenous drug users have access to clean needles through 2020.

This morning the state Assembly passed Assembly Bill 1743, authored by Assemblyman Phil Ting (D-San Francisco), by a 53-20 vote. The state Senate passed the bill last week by a vote of 36-0.

As the Bay Area Reporter noted in a July story, Ting added a five-year sunset to his bill to address objections raised by public safety groups. Initially, his Safe Syringe Access Act would have ended the need for lawmakers to re-address the issue.

Under current California law, pharmacists are allowed to sell up to 30 syringes without a prescription. But the legislation is set to sunset on January 1, and without lawmakers extending the law, syringe sales would remain legal in just 15 counties and four cities, including San Francisco.

The new bill does remove the cap placed on the number of syringes a person could buy at one time. The governor now has 12 days to sign it into law once it reaches his desk.

“Syringes can be bought over the counter in nearly every state because the policy saves lives without taxpayer expense,” stated Ting in a press release issued after today’s vote.  “Mountains of research and the medical community stand squarely behind this bill. We are not innovating, we are playing catch up. By signing the bill, the governor can put California in step with the rest of the nation.”

With access to clean syringes an effective tool in preventing the transmission of HIV and hepatitis, AIDS advocates have been pushing for passage of Ting’s bill. The San Francisco AIDS Foundation and the Drug Policy Alliance are its lead sponsors.

“This bill is an exciting breakthrough,” stated Laura Thomas, deputy state director for the Drug Policy Alliance. “Pharmacy syringe access is a proven and cost-effective way to save lives by reducing the spread of HIV and hepatitis. It has taken years of advocacy to receive such strong support for sterile syringe access inside the state Capitol.”

— Matthew S. Bajko, August 14, 2014 @ 2:07 pm PST
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Three arrested after Castro fight, shooting

Three people were arrested Thursday morning, August 7 after a fight at a Castro district club ended in shots being fired into someone’s car, according to San Francisco police.

The 2:45 a.m. incident started as an argument at a club at 18th and Collingwood streets then escalated, Officer Gordon Shyy, a spokesman for the San Francisco Police Department, said in a summary.

After the three suspects struck the victim, a 38-year-old man, he tried to enter his vehicle and flee, Shyy said. One of the suspects, Ava Sasso, 25, of San Francisco, allegedly used a handgun to shoot into the victim’s vehicle. Jason and Terrance Hill, 33 and 29, respectively, of Oakland, were the other two people arrested, police said. According to the sheriff’s department, none of the three was in custody as of Thursday afternoon. They couldn’t be reached for comment. The victim was not injured.

Alex Bastian, a spokesman for the district attorney’s office, said Friday, August 8 that Terrance Hill is not being charged due to “insufficient evidence.”

Jason Hill is being charged with a felony count of negligent discharge of a firearm, along with two counts of possession of a firearm and single counts of exhibiting a weapon and vandalism, Bastian said. The latter charges are misdemeanors.

Prosecutors have moved to revoke Sasso’s probation, a sentence she’d received for driving under the influence, Bastian said.

The club The Edge, 4149 18th Street; Toad Hall, 4146 18th Street; and Badlands, 4121 18th Street are all in the immediate vicinity of where the fight occurred. Edge co-owner Rob Giljum said in a phone message that the fight had not occurred in his club. Calls to the other two bars weren’t immediately returned. Booking photos of the three suspects have not been released.

 

 

 

— Seth Hemmelgarn, August 7, 2014 @ 3:41 pm PST
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Court records reveal details in toilet recording case

Former SF State professor Mark Landis. Photo: Courtesy SF Examiner via SF State

Former SF State professor Mark Landis. Photo: Courtesy SF Examiner via SF State

The former San Francisco accounting professor who was recently arrested for allegedly taking video of people using the bathroom in his Castro district home made at least 180 videos, and his recordings date back to March 2013, according to superior court records.

San Francisco police Sergeant Chahmal Kerow wrote in a probable cause statement that 180 videos were found on a memory card taken from the camera that Mark Landis, 38, is accused of using to make the recordings.

“At least” 23 of the videos showed “identifiable victims,” Kerow said. Many of the images show men’s penises as they urinated, according to the police sergeant.

Landis, who pleaded not guilty Tuesday, July 29 to 15 misdemeanor invasion of privacy counts, is out of custody on $100,000 bail.

Kerow’s statement is among the documents the Bay Area Reporter reviewed after Landis’s arraignment this week. The records say Kerow seized four laptops, seven flash drives, two memory cards, a digital camera, a passport, a travel confirmation page, and other items from Landis’s home. In addition, Kerow wrote that he retrieved a “last will and testament – suicide note.”

Only the victims’ first names and last initials are listed in the complaint. At least one of the victims was a female, the document indicates. Eight of the victims were filmed in November, while four were recorded in May 2013, two were recorded in April 2013, and one was recorded in March 2013.

In his statement, Kerow said that a man and his friends went to Landis’s apartment in the 4000 block of 17th Street the night of Saturday, November 16 “because it was a celebration” for one of them. The records don’t say what was being celebrated, but note Landis was then a professor at San Francisco State University and the University of San Francisco, and his victims were all former or current students at the schools.

The man, who Kerow identified only as “Victim #1,” told the police sergeant “that at least seven people showed up for the party.” All of them became victims in the case. “We did the usual, we sat, we chatted, we had a couple of drinks,” the man said, according to Kerow’s statement.

At about 11 p.m., the man was using the bathroom and reached for a tissue from the box on top of the toilet. He noticed the box was “shallow,” picked it up, and found that it was “heavy on the bottom.” He turned the box upside down and noticed a blinking light. The man took off the clear cover from the top of the container and saw a memory card, an on/off switch, and a charging plug.

“Victim #1 then realized that the box was a hidden camera and NOT a tissue box,” Kerow wrote. “Victim #1 freaked out and thought if the camera was turned on, he will be caught and Landis will find out.”

The man turned off the camera and tried unsuccessfully to break the box. He took the card, went downstairs, and told two of his friends about the camera. They “agreed that they should not jump to any conclusions because they did not know who owned the camera,” decided to look at the memory card in the morning, and left the apartment.

The next morning the victims met at Dolores Park, then some of them went to Landis’s and told him they’d found the hidden camera “and that they were not going to come to his house again.” They also told him they would “inform anyone that goes to his house” about the bathroom camera.

“Landis responded that he was sorry and that he did not keep any of the videos,” according to Kerow.

The first man – “Victim #1″ – said that the memory card contained 180 videos. They were created from October 25 to November 17. He watched three videos that had images of three females he couldn’t identify using the bathroom. One of the recordings “showed their private body parts including their genitals and buttocks.” He also watched four videos that showed four males that he couldn’t positively identify. The recordings showed the males “urinating in Landis’s bathroom with full view of their genitals.”

The man watched seven videos and was able to positively identify the victims depicted.

One brief video, recorded October 25, shows Landis setting up the camera. The other recordings ranged in length from 23 seconds to just over a minute. Most of the images were taken from about 12 to 2 a.m. All showed victims’ penises as they urinated.

While the first video shows half of the first victim’s face, most of the others don’t appear to reveal faces.

Four of the victims went to the police station in the Mission neighborhood, filed a police report, and gave the memory card to an officer. Landis was arrested July 23. His next court date is September 9. The B.A.R. hasn’t been able to reach him for comment.

Landis’s landlord filed an unlawful detainer lawsuit against him almost four months ago for failing to pay rent, and he was evicted in June, according to court records and documents posted at his former apartment.

Spokeswomen for SFSU and USF have said he no longer works for the schools.

Anyone with information in the Landis case may contact the district attorney’s office at (415) 553-1487.

 

— Seth Hemmelgarn, August 1, 2014 @ 7:05 pm PST
Filed under: Uncategorized


‘Notorious bully’ pleads not guilty in hate crime case

Arturo Pleitez (Photo: San Francisco Police Department)

Arturo Pleitez (Photo: San Francisco Police Department)

A San Francisco man with a long criminal history pleaded not guilty this week to accusations that he threatened a lesbian couple and their daughter at a Mission district bakery.

At the arraignment for Arturo Pleitez, 54, in San Francisco Superior Court Thursday, July 31, Assistant District Attorney Karen Catalona called him “an extreme public safety threat” and “a notorious bully.”

Through Deputy Public Defender Michelle Tong, Pleitez pleaded not guilty to three felony charges of making criminal threats. Two of the counts are being charged as hate crimes.

Alex Bastian, a spokesman for the district attorney’s office, said in an interview that the incident occurred Monday, July 28, at Arizmendi Bakery, 1268 Valencia Street. Pleitez allegedly “ran up on” the family, threatened them, and “made disparaging remarks about the victims’ sexual orientation.” Bastian declined to specify what comments Pleitez allegedly made, and he didn’t know the victims’ ages.

Catalona said in court Thursday that Pleitez “targeted two woman because of their sexual orientation and terrorized them in front of their 2-year-old child,” and if someone else hadn’t intervened, the case could have been even more serious.

Catalona said Pleitez is “such a notorious bully” that the San Francisco Examiner wrote about him almost four years ago.

She said he’s had 71 felony contacts and 174 misdemeanor contacts. (There may be multiple contacts for a single arrest.)

While discussing Tong’s request that Pleitez be released on his own recognizance, Judge Tracie Brown said that his rap sheet was “too big for transmission” and she was only able to view his previous cases up through 2007. She also expressed concern about the “nature of the allegations” in the current case.

Tong said that Pleitez had “many, many arrests” with “no convictions.”

She said he also has a probation case from about a month and a half ago for misdemeanor driving under the influence, and another probation case for misdemeanor disturbing the peace.

She acknowledged the nature of the current charges but said, “Nevertheless, they’re words,” and she said although “some of the words” are “offensive,” they don’t amount to criminal threats. Tong also said it had been clear that Pleitez “was probably under the influence” during the incident, saying that his speech had not been clear. She said her client didn’t appear to have any outstanding bench warrants.

Brown grew irritated, saying, “I saw numerous bench warrants,” plus “at least” four felony convictions and three misdemeanor batteries.

“That is of concern to me,” Brown said.

Catalona said Pleitez  is “well known on 24th Street,” and many in the neighborhood “are afraid of him.” Catalona said he’d recently followed a 92-year-old woman.

Court records show problems that other people say they’ve had with Pleitez.

In a request for a restraining order filed in October, a 42-year-old man who lived with his family on the 1300 block of South Van Ness Street wrote that in July, Pleitez “showed up in front of my house, on top of the stars where there was no light. He scared my family and I because he was hiding and once he saw me he told me what he always tells my family and I. that we should leave the neighborhood because we’re Indians and that he is going to kill us.” The man wrote his 3-year-old son “is beginning to get scared.”

A judge eventually granted the order, which is set to expire in December 2016.

“I’m not afraid he’s going to go anywhere,” because he never leaves 24th Street, Catalona said in court Thursday.

“My concern is he’s an extreme public safety threat,” she said, adding that he has two prior state prison sentences.

Pleitez appeared in court in an orange jumpsuit and handcuffs. Brown denied the request for his release and set his bail at $150,000. His next court dates are for a pre-hearing conference August 6 and a preliminary hearing August 11.

 

— Seth Hemmelgarn, July 31, 2014 @ 3:15 pm PST
Filed under: Uncategorized


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