There is a tragic but interesting criminal case set for trial in San Francisco involving a tenants rights attorney and a claim of self-defense during a robbery. Eviction Defense Collaborative staff attorney Carlos Argueta, 31, and former intern (and Swiss native who lives in London) Pascal Krummenacher, 21, are charged with murder after they alleged were robbed outside a bar where they were celebrating the end of Krummenacher’s internship. Argueta is accused of stabbing to death James Thomas, 61. There is a videotape in the case reviewed by the Examiner.
The two men say that they were leaving the bar on September 3rd and Krummenacher was wearing a backpack while Argueta was wearing a messenger bag. Prosecutors say that they two men were stumbling drunk and even threw up in the bar.
The defense says that four men then set upon them and knocked off Krummenacher’s glasses and shoved Argueta against a car and hitting him with some type of weapon. Krummenacher then broke loose with the messenger bag while the four men are seen surrounding Arguetta. The videotape reportedly shows the attacking men armed with a bat, a cane and a skateboard. At some point, Arguetta stabs Thomas twice.
According to prosecutors, the scene was quite different. They say that “Krummenacher saw Thomas pushing a shopping cart with a messenger bag that he mistakenly thought was Argueta’s missing bag and took it…Thomas took the bag back, but Argueta then took the bag again, gave it to Krummenacher and allegedly stabbed Thomas twice during a struggle.” They further maintain that the video shows “Argueta stick the older man with a knife. The man later identified as Thomas drips blood on the sidewalk, stumbles and falls over.” After they were surrounded by an angry crowd, prosecutors say that “a drunken Krummenacher hopped on a BART train, passed out and woke up at the end of the line.”
The common law does not allow the use of force calculated to cause serious bodily injury or death in protection of property. In famous cases like Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), courts have ruled that “[n]o man can do indirectly that which he is forbidden to do directly.” Not only are such devices viewed as immoral (because human life is more valuable than property), but dangerous because such devices cannot tell the difference between friend and foe. The case however also has been cited for the long-standing rule that no property is viewed as more valuable than a human life. That does not mean you cannot take steps to protect your property and a case of protection of property can become protection of self (with the right to use higher levels of force) when the suspect resists or attacks.
Prosecutors see this case as exceeding any justified self-defense. They apparently believe that the messenger bag did not belong to Arguetta and have charged the two defendants with robbery and possession of stolen property as well as the murder of Thomas. Reports state that the video shows Argueta walking alongside the alleged assailants but no longer holding his bag and, in the next video clip, Krummenacher is seen holding a messenger bag.
If the initial violence was due to the bag, it would appear a mistaken defense of property with force calculated to cause serious bodily injury or death. That is prohibited under the common law and can be litigated as a tort of battery. It obviously can also be a crime. however, despite the videotape, there remains room for the defense to claim that confrontation quickly escalated from defense of property to defense of self. There were weapons used on both sides and rivaling claims of self-defense.
Argueta remains in jail but Krummenacher posted on a $1 million bail.
“You’ve gotta to know when to hold ’em. know when to fold ’em, KNOW WHEN TO WALK AWAY..”
thank you, richard. for the benefit of the third-stringer, i will quote you:
” The existence of a possible injury action alone does not meet the legal criteria for the appointment of a guardian or conservator of the estate.”
Granted, there are two exceptions to the need for a guardian ad litem. However, since most minors are in the care of their parens and so do not have a guardian or a conservator of the estate, they must appear through a guardian ad litem. The existence of a possible injury action alone does not meet the legal criteria for the appointment of a guardian or conservator of the estate.
california code of civil procedure §372 (a) (1) refers to minors, persons who lack legal capacity, and those for whom a conservator has been appointed. the law states:
” … that person shall appear *either* by a guardian or conservator of the estate *or* by a guardian ad litem … A guardian ad litem *may* be appointed …” (emphasis supplied)
there is no mandate for all infants to appear by guardians ad litem.
California Code of Civil Procedure section 372 just passed over my desk as one example.
Alan Tiger, you are confusing the law of all states with the law of only some. In many states, including my own, a guardian ad litem must be appointed for a minor to appear as a party in personal injury actions. Generally, a parent is the person appointed. However, in the absence of appointment as the minor’s GAL, the parent has no ability to act on behalf of the minor in court except under very limited circumstances expressly established by statute.
“You’ve got to know when to hold ’em, know when to fold ’em, KNOW WHEN TO WALK AWAY..”
richard, you have confused two different concepts: a representative party and a guardian ad litem.
it is basic hornbook law that infants and incompetents lack the capacity to sue or be sued. thus, an infant cannot appear in a lawsuit individually as a party. generally, the infant appears “by her parent and natural guardian.” the parent appears as a nominal party in a representative capacity. the lawsuit’s caption and all appearances are created and styled by the plaintiff’s lawyer, and the nominal plaintiff (the parent) is *not* appointed by the court.
a nominal plaintiff parent suing in a representative capacity is simply *not* a guardian ad litem.
infants (and incompetents) are wards of the court and a guardian ad litem will be appointed by the court only when the court learns – long after the lawsuit was begun – that the interests of the real “party in interest” (the infant) are different from the interests of the nominal party in his representative capacity (the parent).
in fact, guardians ad litem are rarely appointed in tort cases. guardians ad litem are appointed only by specifically-tailored case-by-case court order, and the status exists only for the duration of the legal action. this appointment is completely discretionary by the court, and it is certainly not an automatic appointment “in many states … to make sure the kid is protected from bad parents.”
unfortunately, it is still a fact that neither you nor the third-string junior assistant gofer have not cited any statute, case law, or learned treatise from any state in support of this goofy theory.
In many states, children do have a guardian ad litem appointed for personal injury because as minors, they cannot lawfully appear on their own behalf. The person appointed is generally a parent or other parental figure in the child’s life unlesss there is some reason it should be someone else (marginal competence or conflict of interest being the most common).
“Dust Bunny Queen”, apparently posting under a pseudonym, seems to think that someone has attributed the third-stringer’s goofy statement to her. nope. simply not true. try reading the thread one more time.
JT: Res ipsa loquitur (“The thing itself speaks”)
It does indeed. All through these threads.
DBQ points fingers claiming that posters are “…whiney junior high kids who are all b*tt hurt over something no one cares about.”
“Butt hurt”??? Really.
Pot meet kettle, then, one might say.
Oh for crying out loud. Alan Tiger and anonymous both sound like whiney junior high kids who are all b*tt hurt over something no one cares about.
“DBQ, in many states, any personal injury lawsuit automatically has a guardian ad litem appointed to make sure the kid is protected from bad parents.”
This was Spinelli responding to ME not me making this statement. I would appreciate it if that distinction in this continuing squirt gun fight were to be made clear. Thank you. I will now go sit with the adults and let the kids continue spitting on each other.
JT: Res ipsa loquitur (“The thing itself speaks”)
It does indeed. (Thanks again to the tiger.)
Nick said, “Since both are anonymous, or should I say anony, they could be the same sad sack.”
Nope. The PI’s hunch is wrong.
The Nick’s of the world apparently don’t like anonymity. 🙂
LOL! PLEASE keep commenting, Cincinnati Kid.
the third-string junior assistant gofer, who brags several times each week about his experience in law, still won’t admit that on 8/20/15, at 10:55 am, in a thread about an undelivered bar mitzvah gift, he wrote:
“DBQ, in many states, any personal injury lawsuit automatically has a guardian ad litem appointed to make sure the kid is protected from bad parents.”
1 although challenged to do so, he can’t name any one such state, because there are none.
2 he can’t cite any statute, case law, or learned treatise in support of that goofy statement, for there are none.
3 he won’t provide the source of that goofy statement, because there is none.
since there is neither source nor specific reference to law, the statement could only have been a complete and total fabrication.
it is not surprising that this third-stringer, who is proud to broadcast his hate-filled anti-lawyer bigotry several times each day, still can’t name any attorney who claims to specialize in both criminal law and tort law.
having been caught red-handed in patent and fraudulent lies, his self-proclaimed expertise in law must be reconsidered by all. as mr. turley might say, “res ipsa loquitur.”
Mikey, OMG and LOL! Thanks for an opportunity to me amazed by the super ego. We know he had to get his polemics out there for all to be enlightened. And, you might be right about the friends part.
Nick-
Maybe Alan Tiger is another servant of our old friend back from the dead:
https://miconoclast.wordpress.com/2015/07/20/hello-world/
DBQ, A detective who worked w/ me did personal safety training for women. He had a line I have used often. Now, I’m not talking about a strong arm robbery scenario, I’m talking sexual assault/abduction. His line was “Do not fight like it is yourself you are defending, fight like you are defending YOUR CHILD.” That triggers those endorphins. Also, NEVER allow yourself to be dragged into a car. Bite kick scream do whatever you must to not get in that car. Because, once you’re in that car, good chance you will die. And, it will be a very ugly death.