Los Angeles
Case Number(s): 11-C-19478
In the Matter of: Brian J. Baker, Bar # 257228, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Anand Kumar
Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1000
Bar# 261592
Counsel for Respondent: In Pro Per Respondent
Brian J. Baker
1103 Johnson Ave., Suite D
San Luis Obispo, CA 93401
(805) 602-2914
Bar # 257228
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles.
Filed: May 10, 2012.
<<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 August 1, 2008.
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 11 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.
(Effective January 1, 2011)
Reproval
IN THE MATTER OF: Brian J. Baker, State Bar No.: 257228
STATE BAR COURT CASE NUMBER: 11-C-19478
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the facts are true and that he is culpable of the violations of the statutes and/or Rules of Professional Conduct specified herein.
Case No. 1 l-C- 19478 (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDINGS:
This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions
Code and rule 9.10 of the California Rules of Court.
On May 5, 2010, Respondent pied no contest and was convicted of violating California
Vehicle Code, section 23152, subdivision (b) for driving a vehicle with a blood-alcohol level
of .08% or more on December 24, 2009. On February 2, 2012, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: For a hearing and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the misdemeanor violation of Vehicle Code, section 23152, subdivision (b) (driving with a blood-alcohol level of .08% or more), of which Respondent was convicted, involved moral turpitude or other misconduct warranting discipline.
FACTS:
At approximately 4 p.m. on December 24, 2009, a San Luis Obispo County CHP officer was
stopped at an intersection in one of two left-turn lanes, when he observed Respondent’s
vehicle approach the CHP vehicle from behind while driving on the rim of a flat right front
tire before suddenly swerving into the second left-turn lane next to the CHP vehicle.
The CHP officer positioned his vehicle behind Respondent’s car and activated the red front
lights. Once the stoplight turned green, Respondent made a left turn with speed causing
sparks but did not slow down or yield despite the flat tire. The CHP officer activated the emergency lights and siren, however Respondent continued to drive away and made a fight turn onto another local street before ultimately slowing down, stopping in a lane of traffic and then turning off his car. The CHP officer approached Respondent’s vehicle and asked Respondent to lower his window, which Respondent was unable to do because the car ignition was not on, so the CHP officer asked Respondent to open his front door. The officer asked Respondent if he knew that he had a flat tire and he responded affirmatively. After the officer asked for Respondent’s license, Respondent began fumbling around his ashtray and made several attempts to place his car in drive. Respondent was uncooperative in answering questions, so the CHP officer requested a second unit. The CHP officer smelled alcohol coming from inside Respondent’s vehicle. When asked if he had anything to drink, Respondent stated "nothing." Respondent was unable to provide registration or proof of insurance to the CHP officer.
10. The CHP officer asked Respondent to exit the vehicle, which Respondent initially refused to
do. After stepping onto the sidewalk with much difficulty, Respondent was asked to perform
field sobriety tests, which he refused.
11. Respondent admitted that he had been drinking vodka and stated repeatedly that he was
"sorry" at which point the officer could smell alcohol emanating from Respondent’s breath.
12. The officer then placed Respondent under arrest and blood sample was taken from
Respondent at the San Luis Obispo Police station, which showed that Respondent had a .29%
blood-alcohol level at the time.
13. On January 5, 2010, a misdemeanor complaint was filed against Respondent in San Luis
Obispo County Superior Court.
14. Respondent was previously convicted of driving under the influence of alcohol, a
misdemeanor violation of Vehicle Code, section 23152, subdivision (a) in San Luis Obispo
County on October 30, 2000. Consequently, on May 5, 2010, Respondent was convicted of a
misdemeanor violation of Vehicle Code, section 23152, subdivision (b), driving a vehicle
with a blood-alcohol level of .08% or more with a prior.
15. On May 5, 2010, imposition of sentence was suspended and Respondent was sentenced to 45
days of county jail, placed on summary probation for 36 months; ordered to pay all fines and
fees, to enroll in a DWI second offenders program, not to drive with blood-alcohol content
level exceeding a .00% and obey all laws. Respondent has subsequently served his jail
sentence, paid all restitution and fines, and enrolled in and has partially completed the DWI
second offenders program (scheduled to be completed in June 2012).
(Effective January1,2011) Reproval
(Do not write above this line.)
CONCLUSION OF LAW:
Respondent’s misdemeanor conviction for violating Vehicle Code, section 23152,
subdivision (b) (driving a vehicle with a blood-alcohol level of .08% or more with a prior)
constitutes other misconduct warranting discipline.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was April 12, 2012.
AGGRAVATING CIRCUMSTANCES.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where
aggravating circumstances exist. Under Standard 1.2(b)(iv), Respondent’s misconduct
evidences that he harmed the public and administration of justice, because he did not
immediately yield and continued to drive with a blood alcohol level of .29% at the time
the CHP officer activated the siren and emergency lights of the CHP vehicle. His
misconduct also indicates that Respondent was uncooperative with the CHP officer’s
investigative questioning, including making several attempts to put his car in drive
necessitating an additional unit on scene.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 3.4 provides that a final conviction of a member which does not involve moral
turpitude, but does involve other misconduct warranting discipline shall result in a sanction as
prescribed under part B of the Standards. Accordingly, Standard 2.6(a) holds that a willful violation of Business and Professions Code, section 6068(a) shall result in disbarment or suspension, depending on the gravity of the offense or the harm.
C. Applicable Case Law:
In fashioning the appropriate level of discipline, the Standards are the starting point.
Consideration must also be given to whether the recommended discipline is consistent with prior
decisions of the California Supreme Court and the Review Department of the State Bar Court.
A second alcohol-related conviction for driving under the influence is conduct warranting
discipline--a public reproval. In re Kelley (1990) 52 Cal.3d 487. In Kelley, the Supreme Court publicly reproved an attorney and ordered her to comply with certain disciplinary conditions for three years, including conditions to address her use of alcohol, despite finding that attorney Kelley had significant mitigation. Her blood alcohol content in the second incident was tested at. 16% and. 17%. Here, Respondent’s blood alcohol level was tested at .29% and his actions indicated he did not immediately yield to the CHP officers and continued driving causing a further threat to the public. As stated in another conviction referral matter, "[t]he fact that respondent’s drunk driving did not result in serious injury or death to another was merely fortuitous. It does not render the respondent’s conduct any less serious." In re Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, 215. Similarly, the public danger created by driving with a blood alcohol level of .29% coupled with a prior driving under the influence conviction show why Respondent’s conviction in this matter constitutes other misconduct warranting discipline.
Accordingly, Respondent should be publicly reproved for one (1) year with standard conditions
including compliance with the terms of his criminal probation.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of April 12, 2012, the prosecution costs in this matter are approximately $2,287.00. 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
Case Number(s): 11-C-19478
In the Matter of: Brian J.Baker
checked. a. Respondent must abstain from use of any alcoholic beverages, and shall not use or possess any narcotics, dangerous or restricted drugs, controlled substances, marijuana, or associated paraphernalia, except with a valid prescription.
checked. b. Respondent must attend at least 8 meetings per month of:
checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
<<not>> checked. Other program **
As a separate reporting requirement, Respondent must provide to the Office of Probation satisfactory proof of attendance during each month, on or before the tenth (10th) day of the following month, during the condition or probation period.
<<not>> checked. c. Respondent must select a license medical laboratory approved by the Office of Probation. Respondent must furnish to the laboratory blood and/or urine samples as may be required to show that Respondent has abstained from alcohol and/or drugs. The samples must be furnished to the laboratory in such a manner as may be specified by the laboratory to ensure specimen integrity. Respondent must cause the laboratory to provide to the Office of Probation, at the Respondent’s expense, a screening report on or before the tenth day of each month of the condition or probation period, containing an analysis of Respondent’s blood and/or urine obtained not more than ten (10) days previously.
<<not>> checked. d. Respondent must maintain with the Office of Probation a current address and a current telephone number at which Respondent can be reached. Respondent must return any call from the Office of Probation concerning testing of Respondent’s blood or urine within twelve (12) hours. For good cause, the Office of Probation may require Respondent to deliver Respondent’s urine and/or blood sample(s) for additional reports to the laboratory described above no later than six hours after actual notice to Respondent that the Office of Probation requires an additional screening report.
<<not>> checked. e. Upon the request of the Office of Probation, Respondent must provide the Office of Probation with medical waivers and access to all of Respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court who are directly involved with maintaining, enforcing or adjudicating this condition.
Other: **
(Effective January 1, 2011)
Substance Abuse Conditions
Case Number(s): 11-C-19478
In the Matter of: Brian J. Baker
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: Brian J. Baker
Date: April 23, 2012
Respondent’s Counsel: N/A
Date: N/A
Deputy Trial Counsel: Anand Kumar
Date: April 30, 2012
Case Number(s): 11-C-19478
In the Matter of: Brian J. Baker
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.
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 5.58 (E) & (F), 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: 5/7/12
[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 May 10, 2012, 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:
BRIAN J BAKER ESQ
1103 JOHNSON AVE
SUITE D
SAN LUIS OBISPO, CA 93401
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Anand Kumar, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 10, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court