Thursday, March 30, 2023
"More Than Legal Research Sitting In The Yard"
A 120-day suspension was proposed by the California State Bar Court Review Department
Goldblatt had a contentious relationship with his neighbor who lived in the same building in Morgan Hill, California. The building, located at the end of a cul-de-sac, consists of a house with an in-law unit where Goldblatt resided. There is not a house directly across the street from Goldblatt’s unit, but there are homes very close by. Over the years, Goldblatt and his neighbor argued about parking issues and property damage. Viewing the photographs in evidence, the front of Goldblatt’s unit is dominated by a driveway. Additionally, there is a second driveway along the left side of Goldblatt’s unit. Running along the left side of that driveway is a narrow side yard that extends from the street curb to the back of the building.
On the morning of January 31, 2017, the neighbor was in his upstairs unit and looked out his bedroom window and saw Goldblatt sitting in the yard with his shirt undone. He was sitting behind garbage bins and a car that were in the driveway, with a fence and trees to the back of him. Another car parked on the street partially obscured Goldblatt from street view. The neighbor saw Goldblatt pull down the top of his pants, take out a bottle of lubricant, put lubricant on his penis, and touch himself while looking at an adult magazine. He testified he saw Goldblatt’s penis outside of his pants “a couple of times.” The neighbor asserted that Goldblatt observed that he or someone in his unit had noticed Goldblatt through the window, because Goldblatt moved his chair a few feet from the side of the building so that he was in better view of his neighbor’s unit while remaining in the yard. Goldblatt then smiled and waved up to the window while continuing to touch himself. The neighbor called the police and claimed Goldblatt was sitting in the yard masturbating.
Two police officers from the Morgan Hill Police Department arrived at the residence within minutes and approached Goldblatt, who was sitting in the yard with a laptop on his lap. The neighbor also joined the officers at the scene, informing them there was a bottle of lubricant and a “porno mag” underneath Goldblatt’s laptop. Officer Todd Davis spoke with Goldblatt and asked him if he was masturbating. Goldblatt denied that he was and stated he was doing legal research on his laptop. Goldblatt told the officer that he had issues with his neighbor concerning automobile insurance claims. He also stated that the night before, he had taken pictures of the neighbor’s cars because they were blocking him from exiting his garage. Goldblatt claimed that the real reason his neighbor called the police was due to their ongoing disputes.
The neighbor told the officers that Goldblatt has behaved similarly before—that Goldblatt often sunbathes nude or masturbates in the yard. The officers then arrested Goldblatt. At the scene, they photographed the laptop, a stack of papers, the adult magazine, and a bottle of lubricant that were found on or near Goldblatt.
Goldblatt was charged in Santa Clara County Superior Court with indecent exposure in violation of Penal Code section 314(1). As part of a negotiated plea agreement, Goldblatt pleaded nolo contendere to maintaining a public nuisance in violation of Penal Code section 373a,10 and use of offensive words in violation of Penal Code section 415, subdivision (3),11 both misdemeanors.
We agree with the hearing judge that “Goldblatt was engaged in more than legal research sitting in his yard.” The judge found Goldblatt’s “steadfast denials” about his misconduct to not be credible and found the neighbor’s account of seeing Goldblatt unbutton his pants, slightly pull down his pants, apply lubricant to his penis, and place his hand on his penis while viewing an adult magazine to be credible. The judge’s credibility findings are to be accorded great weight, and we see no basis to disturb them in this case.
However, we are not persuaded by OCTC’s assertion that Goldblatt’s actions were in public view. In reviewing the body camera video and the photographs, we agree with the hearing judge that Goldblatt’s actions were not done in full public sight. Goldblatt’s yard is at the end of a cul-de-sac, he was set back from the curb by a reasonable distance, and he was partially obscured by cars and garbage cans with trees and a fence behind him. The neighbor said he saw Goldblatt’s penis only a couple of times over a period of several minutes. Because the neighbor’s window was on the second floor, Goldblatt’s yard was visible to the neighbor, but there is not clear and convincing evidence that Goldblatt was fully exposing himself in a way to be seen by the public or other neighbors if they were to walk or drive by on the street.
Because Goldblatt had previous discipline including a 90-day actual suspension, standard 1.8(a) requires that the discipline in the instant case be greater. Standard 1.2(c)(1) states that the next duration of actual suspension above 90 days is “generally” six months. As this is not a mandate and considering the unique circumstances of this case―that Goldblatt’s conduct was directed at his neighbor who no longer resides in the same building as him after years of ongoing disputes and was somewhat camouflaged―we find that an actual suspension of 120 days is adequate to protect the public and the courts, and to emphasize to Goldblatt the importance of following the law and his ethical obligations.
The offense did not involve moral turpitude. (Mike Frisch)