Case Number(s): 08-C-14854-DFM
In the Matter of: Kevin Kirk Randolph, Bar # 149007, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Bita Shasty, Bar # 225177,
Counsel for Respondent: Darryl L. Exum, Bar # 152063,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: April 20. 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 December 4, 1990.
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 10 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):
checked. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: Kevin K. Randolph, State Bar No. 149007
STATE BAR COURT CASE NUMBER: 08-C-14854-DFM
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING
1. This is a proceeding pursuant to sections 6106 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On August 28, 2009, Respondent was convicted of violating California Penal Code section 244.5, subdivision (b) (assault with a stun gun or taser) in Riverside County Superior Court.
3. On December 11, 2009, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: hearing and decision recommending the discipline to be imposed in the event that the hearing department finds that the facts and circumstances surround the violation of Penal Code section 244.5, subdivision (b) involved moral turpitude or other misconduct warranting discipline.
FACTS AND CONCLUSIONS OF LAW.
Respondent Kevin K. Randolph ("Respondent") admits that the following facts are true and that he violated Penal Code section 244.5, subdivision (b), as set forth below, and that said conduct involved other misconduct warranting discipline.
FACTS
On June 7, 2008, at approximately 1:14 p.m., Officer Hobbs of the Riverside County Sheriff s department was dispatched to 13721 Pine View Drive. Upon arrival, Officer Hobbs saw a white male, later identified as Ernest Barrio, standing in front of the location with blood covering most of the left side of his face and neck and left hand. He dispatched to have paramedics come to his location. Barrio stated that he had been tasered. Officer Hobbs also observed that Respondent had scrap marks on the front of both thighs and knees, including some blood on his face. He had paramedics also tend to Respondent. When asked by Officer Hobbs, Respondent admitted that he had deployed the taser.
Barrio told Officer Hobbs that he had been working in from of his garage when he noticed Respondent’s son, Christopher, sitting in front of Barrio’s property. Barrio observed Christopher shooting pellets from an air gun into an open field across the street. Barrio approached Christopher and told him to stop shooting the pellets and to go home. Christopher apologized and walked away. Shortly after, Barrio noticed that Christopher had only gone to the comer of the street and hid behind a tree. Barrio saw Christopher shooting pellets as vehicles drove by. Barrio then retrieved his camera from his house and began taking photos of Christopher shooting at vehicles with his air gun.
Barrio again asked Christopher to stop shooting at vehicles and that he was going to call the police. Christopher then left the location. Approximately 15 minutes later, Christopher returned to the location with his sister, Erin. Barrio saw Erin shooting pellets from the air gun into the open field and told her to stop. An argument ensued and Erin called Respondent to come to her location.
When Respondent arrived, Barrio and Respondent’s children were still arguing. Respondent and Barrio had a verbal argument and Respondent was bumping Barrio with his stomach. Respondent then hit Barrio on top of his head in a forceful manner. Barrio and Respondent continued in their physical altercation with each other, including punching each other. Respondent then used a taser on Barrio in the stomach area. Barrio then retreated away from Respondent.
Officer Hobbs examined Barrio’s head and saw two deep gashes about an inch and a half long in his scalp. He also saw an abrasion on his forehead about two inches long and two puncture marks on the left side of Barrio’s stomach area.
Respondent contends the altercation was necessary to protect his children, however the Office of Chief Trial Counsel disputes this statement.
On August 15, 2008, Respondent was charged in Riverside County Superior Court with violating California Penal Code 244.5, subdivision (b), assault with a stun gun or taser, a felony. On August 28, 2009, Respondent pled guilty to a misdemeanor violation of Penal Code 244.5 subdivision (b). As part of the plea agreement it was stated that Respondent acted in the heat of anger. Respondent was placed on three years summary probation, ordered to be committed to the custody of the Riverside County Sheriff for 45 days, to be served on consecutive weekends and to pay restitution to victim Barrio.
CONCLUSIONS OF LAW:
The parties stipulate that the facts and circumstances surrounding Respondent’s violation of California Penal Code, section 244.5, subdivision (b) did not involve moral turpitude, but did involve other misconduct warranting discipline. Respondent acknowledges that by the conduct described above, he failed to support the laws of the State of California in wilful violation of California Business and Professions Code, section 6068(a).
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of April 13,2010, the approximate costs in this matter is $1,636. 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. The Interim Chief Trial Counsel has approved the cost at level 2.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was April 5, 2010.
COMPLIANCE WITH CONDITIONS OF PROBATION IN UNDERLYING CRIMINAL
MATTER.
Respondent shall comply with all conditions of probation imposed in the underlying criminal matter and shall so declare under penalty of perjury in conjunction with any quarterly report required to be filed with the Office of Probation.
AGGRAVATING CIRCUMSTANCES.
Harm to Public (Standard 1.2(b)(iv)
Respondent’s misconduct resulted in physical harm to victim Barrio. Barrio had two puncture marks on his stomach from the taser Respondent used on him. He also had two deep gashes, an inch and a half long in his scalp in addition to an abrasion on his forehead.
MITIGATING CIRCUMSTANCES
Good Character (Standard 1.2(e)(vi)
Respondent provided the State Bar with seven letters from the legal and general community attesting to his good character and who are aware of the full extent of Respondent’s misconduct.
ADDITIONAL MITIGATING CIRCUMSTANCES
Respondent has been a member of the California State Bar for 20 years and has no prior record of discipline.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3, Title IV, Standards for Attorney Sanctions for Professional Misconduct, provides that the primary purposes of the disciplinary system are: "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 3.4 states that "[f]inal 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 other 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."
The parties further submit that the intent and goals of Standard 1.3 are met in this matter by the imposition of a public reproval with probationary conditions articulated herein, including that Respondent attend Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 08-C-14854-DFM
In the Matter of: Kevin Kirk Randolph, State Bar No.: 149007
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Kevin Kirk Randolph
Date: April 14, 2010
Respondent’s Counsel: Darryl LExum
Date: April 14, 2010
Deputy Trial Counsel: Bita Shasty
Date: April 15, 2010
Case Number(s): 08-C-14854-DFM
In the Matter of: Kevin Kirk Randolph, State Bar No.: 149007
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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 135 (b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: April 16, 2010
[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 April 20, 2010, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS 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:
DARRYL L. EXUM
4129 MAIN ST STE 204
RIVERSIDE, CA 92501
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Bita Shasty, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 20, 2010.
Signed by:
Rose Luthi
Case Administrator
State Bar Court