by Mike Rains, Attorney, Rains Lucia Stern, PC
It was Thursday, May 5, 2011 when my cell phone rang and I chose not to answer. I was listening to my son and his seventh grade jazz band playing a concert at Disneyland. I had volunteered earlier in the year to serve as a chaperone and had traveled on a bus with the jazz band members the day before. After their concert and later listening to them play in a Disney sound studio, I started catching up on telephone calls, including the one I missed during the performance. The call had come from Bennie Taylor, a Hayward police officer who I had represented in a very gnarly fatal officer-involved shooting a couple of years earlier. Bennie had left a message telling me that his wife, whose name was Kari Abbey, was having some “pretty serious legal issues” and could use my help and advice.
I telephoned Kari, a deputy sheriff employed by Stanislaus County, only to learn that she had been charged with murder, voluntary manslaughter, and several other felony offenses. She was unhappy with her current legal representation and wanted to talk to me about assuming her representation. That initial call, additional telephone calls I made during the next couple of days from Disneyland, and a meeting with Kari and Bennie upon my return to my office ultimately led to my entering the case of People v. Kari Abbey, venued in Stanislaus County.
The “heart” of the case filed by the District Attorney against Kari related to her fatal shooting of a woman named Rita Elias on September 24, 2010. Immediately following the shooting, detectives from the Stanislaus County Sheriff’s Office and the D.A.’s Office commenced a criminal investigation surrounding the circumstances of the shooting. The Sheriff was quoted several weeks after the shooting in local newspapers stating that it appeared that Deputy Abbey had shot Rita Elias in “self defense.”
The investigation appeared to stagnate for a number of months, but resumed momentum with the D.A.’s Office in March of 2011. At that point, Sheriff’s Department investigators and District Attorney investigators began seeking the issuance of search warrants for evidence relating in one way or another to the shooting. The investigators had learned that Kari, in addition to her detective assignment, managed a number of rental properties which she and Bennie owned or which were owned by other individuals, including her father. The fatal shooting of Rita Elias by Kari had occurred in front of a rental duplex owned by her father after her father, the property manager and Kari had gone there to collect rent from the tenants. When they arrived, the three male tenants were gone, but Rita Elias, laboring under the combined influence of alcohol and methamphetamine, was standing out front.
A verbal argument ensued between Kari and Elias, and when Elias advanced on Kari in an aggressive manner, Kari struck her with a fist, knocking her to the ground. Kari went down on top of Elias briefly, but then got back up and told Elias to leave. Kari threw a purse and a backpack which Elias had been carrying toward the street in order to hasten her departure away from the apartment. Elias continued to scream at Kari but picked up her backpack and purse and started to walk away from the area, according to a next door neighbor who we called as a witness at the preliminary hearing. The next door neighbor testified that as Rita was walking away from the area of the apartment, Kari said nothing to her to antagonize her or threaten her. All of a sudden, without warning, Elias put her purse and backpack down on the ground, shed the high-heel platform style shoes she was wearing, and said, “F*** it, I’m going to get a gun.” The next door neighbor testified that Rita then made a beeline toward the front door of the apartment (where she had apparently been staying on and off with the three male renters whom Kari and the others had come to collect the rent from).
Given Rita’s threat to get a gun, Kari went to her own personal automobile, which was still running and which had her one-year-old daughter and six-year-old son inside, and retrieved a firearm. In less than a minute after Rita had walked into the front door of the apartment, she emerged holding what appeared to be a .45 caliber semiautomatic pistol. She carried the pistol in her right hand and a stick in her left hand. As she approached the area where Kari was crouched behind the front end of her father’s vehicle, Rita threw the stick down and raised the handgun, pointing it directly at Kari. Kari fired two or three times and Rita appeared to fall or stumble, and screamed a profanity. Rita then started walking around to the other side of the rear of the vehicle owned by Kari’s father, and Kari walked toward the same side of the vehicle at the front end. When Rita appeared once again holding the handgun in a raised position with her right hand, Kari fired several more rounds. One of the rounds, the second of three which entered Rita’s body, entered through her raised right arm on the outside of the arm just below the elbow, traveled briefly through the arm and exited in the inner bicep area and then reentered the body through the chest, ultimately penetrating the heart and causing the death of Elias. The autopsy confirmed that at the time this round was fired, Elias’s right arm was raised as witnesses had described it to the authorities.
As I argued to the judge who heard the preliminary hearing which lasted four days, Kari’s shooting of Elias was lawful in all respects as an act of self defense and defense of others, including her father, her two children, and several other bystanders in the area.
If this was a self-defense shooting, why in the world did the Stanislaus District Attorney’s Office decide that Kari Abbey had either committed a murder or a voluntary manslaughter? The D.A.’s argument was essentially this: Rita Elias was a “resident” and a “tenant” at the apartment where Kari and the others had gone to collect rent. When Kari and Rita became involved in a verbal dispute, Kari became the aggressor and struck Rita, knocking her to the ground. When Rita got up, Kari’s father was overheard by one or more witnesses to say something to Rita which suggested that if she did not leave he would “set” Kari after Rita once again. Since Rita did not have a cell phone and could not call the police, she had to defend herself and entered her “residence” to secure a firearm. Once inside the residence, Rita could claim the “defense of her castle” presumption contained in Penal Code section 198.5, and Kari Abbey, as the initial aggressor, would lose the right of self defense.
The D.A.’s clever and crafty “theory” for prosecuting Kari had several major obstacles, not the least of which was the fact that Rita Elias was really neither a resident or even a tenant at the apartment – she was simply a squatter who even the tenants who were interviewed said was essentially homeless and just “came and went” on various occasions. More significant, however, was the fact that the Penal Code section 198.5 presumption that allows a resident to assume that an intruder intends to inflict death or great bodily injury only applies when the resident is inside his/her “castle” to begin with. Here, after Kari Abbey had completely disengaged physical contact and verbal contact with Rita Elias, and Rita Elias appeared to be leaving, she suddenly and inexplicably set her belongings down, walked back into the apartment, armed herself, and reemerged from the apartment in order to point the weapon at Kari. According to one of the crime scene investigators, at the time of the shooting, Rita Elias was no less than twenty feet north of the doorway of the apartment and thirty to forty feet west of the same doorway. Thus, it could hardly be said that she was “defending her castle” when she pointed the gun at Kari.
Search warrants served at Kari’s residence, her workspace and assigned detective’s car led to the D.A.’s Office seizing evidence which became the basis of other charges which we also actively litigated at the preliminary hearing. As I argued to the judge, these subsidiary charges were really an effort by the D.A.’s Office to assassinate Kari’s character as a deputy sheriff, landlord, property manager and mother. To give our readers an example, Kari was charged with receiving stolen property when several different types of vests were found under other items of clothing in a walk-in closet shared by Bennie and by Kari. The D.A.’s office claimed that Bennie, who had recently retired from Hayward Police Department, had failed to turn the vests in at the time of his retirement, making them “stolen property.” There were two problems with this “theory.” First, no one from Hayward Police Department could identify the very aged and outdated vests as property of the Police Department, and in one case, a lieutenant from the Police Department who testified at our request indicated that one of the vests had been purchased by another officer who had apparently given it to Bennie. Second, of course, was the fact that no one could establish that Kari was even aware that the vests were located under the items of clothing on Bennie’s side of the closet or that she had any knowledge or belief that they were stolen to begin with. Thus, that charge was dismissed as well at the preliminary hearing.
We still need to deal with several more charges that the judge at the preliminary hearing felt could be decided by a jury. I am confident that no jury in Stanislaus County is going to convict Kari Abbey of those charges, and the only issue which warrants some amount of debate is how long it will take for an acquittal to occur once the case is submitted.
In the final analysis, I am glad I took the call from Bennie when I was at Disneyland last May. I am glad I entered the case for Kari Abbey because it is another case where politics resulted in a bad decision to prosecute a cop. I am extremely happy we were assigned a judge for the preliminary hearing who, despite the media attention this case had garnered in Stanislaus County, had the intellectual honesty and the fortitude to do the right thing with the most serious charges.
Politics and political grandstanding have no place in the very serious business of evaluating police officer conduct which often occurs in the spur of the moment without much time for pause or reflection.
Here, the Stanislaus District Attorney tried to “hook” Kari Abbey on very serious criminal charges based on clever and crafty lawyer theories, rather than a solid evaluation of the evidence. And, in doing so, the D.A. almost succeeded in reducing the search for justice in Stanislaus County to a fairytale from the kingdom of Disney.