Judges and Judiciary
Jun. 18, 2002
Here's the Robe, There's the Bench, Start Presiding
MERCED -To say that Merced County Superior Court Judge John Kirihara hit the ground running his first day on the bench is not an exaggeration.
John Kirihara
Judge
Merced County Superior Court
Career Highlights: Appointed by Gov. Gray Davis, 2001; law partner, Morse Morse & Morse, 1984-2001; hearing officer, Merced County Mental Health Department, 1992-2001; contract criminal defender, Merced County, 1984-1990; deputy public defender, 1984, 1990.
Law School: UC-Davis School of Law, 1979
Age: 52
Indeed, the episode has entered local court lore.
As Kirihara tells it, three hours before being sworn in, he was already being briefed on a felony three-strike case set for jury trial the next day.
And before he could unpack his stuff and settle into his chambers, he was on the bench hearing the case.
"I remember being a little bit scared at the time," Kirihara recalled. "I know it was a bit unusual to get off to this sort of start in a judicial career, but I didn't have any choice because speedy trial time limits were soon to expire."
"It felt as if I jumped right into the frying pan," he said.
Two weeks later he was presiding over a 56-count child molestation trial. By the end of his first month, the rookie jurist was assigned another jury trial involving a first-degree murder charge.
Six months, 15 jury trials and several bench trials later, the local bar considers Kirihara an old hand, a judge who can handle any type of case with aplomb.
"Most judges ease into the job and gradually grow into it, but Judge Kirihara already exhibited the qualities of a seasoned judge on his first day at work," said Marc Garcia, the defense attorney in Kirihara's first case.
"He did it like he's been doing it for years," agreed deputy district attorney Bob Brown, the prosecutor in the case.
"At this early stage of his judicial career, he has already established himself as one of our very best trial judges," Brown said.
The sentiment is widely shared. Local lawyers say Kirihara already has handled some of the most complex cases usually reserved for more experienced judges.
That very first case, People v. Sandoval, SUF 24700, for example, already had been through a mistrial. It was a three-strikes offense involving multiple counts of molestation against very young victims.
"A less experienced judge could not have tackled head-on all the legal issues in the case, but Judge Kirihara did a superb job on his first try," Brown said.
Kirihara's early cases also included a first-degree murder trial that nearly ended in a mistrial because of possible juror misconduct.
In People v. Rivera, SUF 24527, a man was accused of breaking into his estranged wife's apartment, dragging her from a closet where she was hiding and shooting her to death. Lucio Rivera also was charged with burglary and possession of a firearm within 10 years of being convicted of battery on his wife, Elida Rivera.
Rivera further was charged with two counts of assault with a deadly weapon after allegedly threatening his wife's roommate and a friend with a gun.
"It was a very serious case involving a myriad of complicated issues," said Merced County Chief District Attorney Larry Morse, the prosecutor.
"Not only that, all the things that could go wrong went wrong in this case," he remembered.
On the day jurors reached a verdict, a court clerk discovered that three documents, never entered into evidence, had been given to jurors inadvertently as they began deliberating the night before. The papers in question were a marriage certificate and two forms filled out when Elida Rivera used the services of a women's shelter after her husband attacked her two years earlier.
Immediately after the error was discovered, Kirihara individually interviewed all the jurors to determine whether their deliberations had been tainted. He asked court staff members to testify about how the mix-up occurred. Eventually, he ruled the documents had not influenced the jury and allowed the verdict to be entered.
The jury convicted Rivera of first-degree murder.
"I could not have been more impressed at the control Judge Kirihara exercised in the conduct of that trial," Morse said. "His ruling may be appealed, but it showed a lot of chutzpah and kept the process going."
Rivera's lawyer, deputy public defender Sean Howard, commended the judge for keeping his cool under the circumstances.
"Someone clearly made an error, but he was careful not to blame anyone," Howard said. "He was in control from beginning to end."
The case clearly was Kirihara's most challenging so far. Only two months into his judicial career and he already had to do some serious legal research, he said.
"That was a case when I had to go back and really research on what the appropriate procedure is," he said.
Kirihara's dexterity in handling complex felony cases also came in handy when the Judicial Council appointed him to rule on motions to dismiss accusations of robbery, burglary and kidnapping in the triple-murder case against Cary Stayner. People v. Stayner, 210694 (Santa Clara County Superior Court, Jan. 2002).
The three special circumstance allegations would allow prosecutors to seek the death penalty in Stayner's trial for allegedly killing three Yosemite tourists in February 1999. He already has been convicted of murdering Yosemite National Park naturalist Joie Armstrong.
In late January, Kirihara ruled that the prosecution had presented sufficient evidence during a preliminary hearing to support the charges.
"He was practically thrown in the middle of a very complicated case with a lot of legal and factual issues to consider," said Stayner's lawyer, Marcia Morrissey, a Santa Monica solo practitioner.
"I was only before him for an hour and, although he ultimately ruled against me, I was really impressed with him because he was on top of everything."
A veteran of nearly 100 criminal jury trials and more than 100 civil cases, Kirihara was considered one of Merced's top trial lawyers before his bench appointment by Gov. Gray Davis. Kirihara replaced Superior Court Judge Dennis Cornell when he moved to the 5th District Court of Appeal in Fresno in 2000.
He started his law practice as a deputy public defender in 1980 after graduating from the UC-Davis School of Law. He entered private practice and became a partner at Morse Morse & Morse in Merced, where he continued with his criminal defense work as a contract defender. He also briefly worked as a part-time prosecutor in the Merced County district attorney's office.
"He may have zero experience on the bench, but his trial experience and his immense grasp of criminal law prepared him to be a judge from Day One," said Merced County Court Commissioner Harry Jacobs, a close friend of Kirihara's who opposed him in court during their days as trial attorneys.
More than his trial experience, what makes Kirihara an ideal judge is his temperament, according to prosecutor Morse, who has known Kirihara for 15 years.
"He is unflappable. No matter how hard it gets, he always remains calm and collected, and this is true off and on the bench," Morse said.
"He's not into emasculating or eviscerating attorneys in the courtroom, so everyone can relax," he added.
Kirihara said his trial experience makes him sympathetic to lawyers in his courtroom.
"I know that the stress level for lawyers is higher than for a judge," he said. "And as much as possible, I try to be as patient as I can with them."
Kirihara, who lives in Merced with his wife, Judith, and two teen-age sons, also credits his two-year stint as an elementary school teacher for his laid-back courtroom demeanor.
"My wife, who is a school librarian, used to tell me that being a judge is a lot like being a teacher," Kirihara said. "You are constantly in the public's eye and a lot of people depend on you for leadership."
Even though everyone seem to have quickly embraced his leadership on the bench, Kirihara still feels he has a lot to learn.
"I'm just starting out here, and I am looking forward to many years of interesting and challenging work," he said.
Recent cases handled by Kirihara and the attorneys involved:
• People v. Sandoval, SUF 24700
District attorney: Bob Brown
Defense attorney: Marc Garcia, Morse & Pfeiff, Merced
• People v. Ballinger, SUF 25377
District attorney: Harold Knutt
Defense attorney: Dominic Falasco, Vaugh & Falasco, Los Banos
• People v. Roman, SUF 25943
District attorney: David Sandhaus
Defense attorney: Roseanne Faul, public defender
• People v. Rivera, SUF 24527
District attorney: Larry Morse
Defense attorney: Sean Howard, public defender
• People v. Ramirez, SUF 26341
District attorney: Thomas Cooke
Defense attorney: Gregory Alonzo, San Jose sole practitioner
Xenia Kobylarz
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com