From: SFGate
By Vivian Ho 1/6/16
A San Francisco sheriff’s deputy convicted of beating a homeless and disabled hospital patient — a man who was initially accused of attacking the deputy — won’t have to serve time behind bars after a judge dismissed one of the charges against him and sentenced him to probation.
Deputy Michael Lewelling, 34, was found guilty in October of assault under the color of authority, a felony, and misdemeanor assault in connection with the Nov. 3, 2014, encounter in the waiting room of San Francisco General Hospital.
On Wednesday, Superior Court Judge Ellen Chaitin granted a motion to dismiss the lesser misdemeanor charge. She handed down a sentence of three years of probation and 100 hours of community service, citing the 60-year-old victim’s credibility, said attorney Harry Stern, who is representing Lewelling.
Stern said he was pleased with the judge’s decision and planned to appeal the remaining conviction. But the district attorney’s office expressed disappointment.
“This was an assault on an unarmed patient with a disability,” said office spokesman Max Szabo. “Given the vulnerable nature of the victim and the seriousness of the conduct, we felt that the one-year County Jail sentence that we requested was more than appropriate.”
Lewelling was assigned to the sheriff’s patrol unit at the hospital when Fernando Guanill arrived early for an appointment regarding knee replacement surgery and fell asleep.
Wrongdoing suspected
Lewelling filed a report saying that when he asked him to leave, Guanill tried to attack him with his wooden cane and threatened to hurt him if he touched him. Guanill was jailed, but prosecutors, suspecting wrongdoing, declined to file charges and requested video evidence.
Later, in court, Assistant District Attorney Nancy Tung said the video of the encounter clearly showed Lewelling acting as the aggressor and Guanill seemingly complying with his orders to leave, getting up and shuffling one step with his cane before Lewelling threw him back.
Guanill, who filed a federal civil rights lawsuit against the city, said he was choked, hit and belittled by Lewelling and two additional deputies, who were not charged.
Stern said Lewelling had been responding to requests of other hospital staff to remove Guanill when Guanill “went off.” He said Guanill had a history of spitting on law enforcement and health workers, and had previously been accused of pulling a knife on a uniformed officer and urinating in a sink at UCSF Medical Center — actions Judge Chaitin cited when questioning Guanill’s credibility.
‘Lack of criminality’
“The (sentence of) 100 hours of community service is a clear indication of the real lack of criminality both in terms of history and the incident by my client,” Stern said.
Stern said the basis of his appeal on the final charge is that the law recognizes that peace officers require some leeway in performing their duties.
“The district attorney’s position throughout the case that any force, even the slightest touching, amounted to a crime based on the idea that Deputy Lewelling had no right to detain Mr. Guanill — that’s not the law,” Stern said. “If that were the law, it would put every cop in the state in a precarious position because if a judge later determined that they didn’t have grounds in a technical sense to stop somebody, then they’d be committing a felony.”
Randolph Daar, who is representing Guanill in his lawsuit, said he was upset that his client’s credibility was used to justify a light sentence.
“The video depicts basically the entire incident,” he said. “His credibility is not riding on him to say, this happened or that happened. You can see him being choked.
“It was disappointing to me because no matter what you think, if you respect the jury’s verdict, Fernando was a victim of something bad that happened,” Daar said. “Even if the judge thought he wasn’t credible, he was still a victim and he deserves to be treated with some respect. The guy beat him, choked him and then threw him in jail. Fernando did more time for getting attacked than Lewelling will do.”
Lewelling remains on unpaid leave.
