Criminal defense lawyers serving: Stanislaus, Sonoma, Tuolumne, Merced, San Joaquin Counties - and Federal Courts in Sacramento and Fresno


In 1981 the client (client’s name withheld at her request) was born in Costa Rica, where her family resided for a year before coming to the United States. Everyone in the client’s family achieved citizenship, but through oversight the client who was a legal permanent resident never became a United States citizen. The family opened and ran a successful business.

Like many other young people, the client saw the recreational use of drugs lead to addiction. This resulted in felony convictions in two counties for the possession for sale of drugs and transportation of drugs for sale.

It is no secret that the immigration policies of the United States are draconian, but they are particularly unforgiving when one is convicted of drug offenses. Thus the client was deported in 2009 to Costa Rica, where she had no family, knew no one and did not speak the language. All she arrived with were the clothes on her back.

The client made the best of the situation. She rehabilitated herself from the clutches of her drug problem. She learned the language. She went to college and earned several bachelor’s degrees, graduating with honors. She volunteered, teaching native children English. She became the assistant manager of a prominent hotel.

These accomplishments did not erase the fact that she was separated from her entire family. She was banished.

After eight years, the client’s family retained a highly regarded expert on immigration law, Mr. Norton Tooby, author of the landmark treatise Criminal Defense of Immigrants. Kirk McAllister was then called by Mr. Tooby, who had previously enlisted Mr. McAllister’s help in other difficult criminal immigration cases.

Mr. McAllister first turned to the Stanislaus County case. He concluded that the client had not been given adequate immigration warnings. On this basis he made a motion to overturn the conviction. That was granted and the case was then dismissed.

Next, on a similar basis, the Tuolumne County convictions for possession for sale and transportation for the purpose of sale were vacated, although not dismissed. On May 22, 2018, two weeks before the jury trial, Kirk McAllister was able to convince the prosecutor to dismiss the drug charges.

The client is now back in the United States, reunited with her family, pursuing citizenship and ready to resume her career. Her nine year nightmare is over.

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On April 25, 2018, at the invitation of the Employer Advisory Council (EAC) of San Mateo County, Kirk McAllister presented a seminar to executives and managers on the subject of industrial accidents investigated as crimes by the Occupational Safety and Health Administration (OSHA) and what to do when that happens.

Kirk McAllister has defended businesses, executives and managers in Cal/OSHA matters since 2002. He calls these cases “sharks with no fins” because no one sees the likelihood that an accident investigation will lead to criminal charges.

In fact, if you have a fatal workplace accident, it will be referred to the Bureau of Investigations, the criminal arm of Cal/OSHA.

No one can predict when an accident will happen, but Mr. McAllister advises businesses to have a plan ready for that eventuality. In this situation a company’s normal responses will worsen the consequences. McAllister’s plan includes the all-important issue of how to handle the inevitable publicity that follows a fatal accident. When a company waits for the accident to happen without planning, the fast-moving events will guarantee that the response will be disjointed, ineffective and may even enhance the possibility that criminal charges will be filed!

The EAC audience asked thoughtful questions which contributed to a stimulating seminar. Hans Boehm of the State of California Employment Development Department is to be thanked for facilitating this seminar.

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What happens when a teacher has his class disrupted by an unruly student who dislikes the teacher, calling him names to the student’s friends and making obscene gestures and gyrations behind the teacher’s back?

The teacher is charged with felony child endangerment!

Scott Wendt is a committed, extremely popular junior high math teacher. He considers teaching children his calling (actually it is his second calling—he previously was a minister).

One day when the student had been particularly disruptive and disobedient, the teacher led him back to his seat, holding him by the forearm. The student claimed that the teacher’s action had resulted in him breaking a bone in his hand. The bone which was broken, the scaffoid bone, is a small one in the hand that almost always breaks only when one braces for a forward fall by extending the hand downward.

Mr. Wendt asked Kirk McAllister to defend him. The investigation began immediately.

All the students in the class were interviewed. School records were obtained, with the authorization of the judge who was to hear the case.

A P.E. teacher had a specific recollection of the student in P.E. class in the period following Mr. Wendt’s math class. The student fully participated in P.E., even doing push-ups!

Another former teacher of the student was found who had made extensive notes about the young man. She was troubled by his constant lying about others hitting him, and made her notes because she was afraid that he would lie about another student, or even a future teacher! She did not know Mr. Wendt.

Past students of Mr. Wendt were lined up to be character witnesses to his caring, peaceful nature.

The assumption in the courthouse was that the District Attorney would offer a misdemeanor as a way for Mr. Wendt to avoid a felony.  Mr. Wendt was adamant that he was not going to take a plea bargain—he knew he was innocent.

Within the time prescribed by law, Mr. McAllister provided the prosecutor with the evidence that would be presented to the jury in his client’s defense.

The day before jury selection was to start, the District Attorney dismissed the case.

Scott Wendt is now back in the classroom, following his passion—teaching the children.

(Mr. Wendt’s name and photograph appear with his express permission.)
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Many police departments are equipping their officers with body cameras.  This is widely viewed as an advancement in criminal justice, affording a measure of protection for both the peace officer and the public.  It is becoming so commonplace that one must resist the urge to draw adverse conclusions when an agency digs in its heels and refuses to use them.

Kirk McAllister was hired to defend a woman charged with domestic violence.  He substituted in for her previous attorney, who had set the trial three weeks away.  After getting the police reports, the first thing Mr. McAllister did was secure the body camera videos and begin studying them.

The trial began August 15, 2016.

While cross-examining the arresting officer Mr. McAllister asked, “Describe my client’s injuries.”  He answered, “She wasn’t injured.”  Next he asked, “Didn’t you say you would document her injuries?”  The officer again said, “No, she wasn’t injured.”  Finally, Mr. McAllister asked, “Didn’t you offer to photograph her injuries?”  Once again he answered, “No. She wasn’t injured.”

The next day Mr. McAllister played portions of the body cam video for the jurors.  The most dramatic one showed the client sitting in the back of the patrol car,  sobbing (she had never been arrested before).  She pointed to her left arm and said, “What about my injuries?”  The same officer said, “Don’t worry, ma’am. I will document them. I’ll have photographs taken of them.” In fact no photographs were taken of her injuries.

The jury found Kirk McAllister’s client not guilty.

Body camera videos may be helpful or they may be harmful to the defense, but they must be studied by the attorney.  Technological innovations are absorbed by the criminal justice system just as quickly as they affect the rest of society, but there is one constant: it is still thorough preparation that wins cases.

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Kirk McAllister believes that the criminal law is at its worst when dealing with true mental illness.  This case underscores that belief, and illustrates the determination with which a lawyer should approach such cases. The chronology of significant events is important for an understanding of this case.

The client is a 37-year-old man who was trained as a first responder.  When he was approximately 30 years old he began suffering from mental issues. These were fully controlled when he was on his medications. He was out of custody while the case has been pending, fulfilling his usual role of being a stay-at-home father for his two young children, while his wife was working.

On November 23, 2013 the client was arrested in Tuolumne County for a serious felony, a strike under California’s Three Strikes Law.  Mr. McAllister promptly had the client evaluated by a psychologist.

A preliminary examination was held September 17, 2014.

On December 8, 2014 the client entered a plea of not guilty by reason of insanity.

The client was at a market in Merced County on December 21, 2014.  He saw a woman being attacked outside in the parking lot.  He ran to her to give her aid. Seeing that she was not injured, he then gave foot chase to the man who had robbed her. He didn’t catch him or his accomplice after they escaped in a car, but he was able to give detailed descriptions of the robbers and their vehicle to the police.  The robbers were promptly arrested by the police. Inside the car were the woman’s purse and its contents. Thus he became the prosecution’s star witness in the Merced robbery case.

Mr. McAllister advised the client to proceed to trial by a judge, waiving the right to a jury. The defense relied on the psychological evaluation that had been conducted close in time to the event. The judge found the client not guilty by reason of insanity.

The next question for any judge in this circumstance is what to do with the defendant.  For guidance in this decision in California, the courts refer the issue to the Conditional Release Program, commonly called CONREP.  This agency is directed to make a recommendation to the judge. Historically, this recommendation has virtually always been to commit the accused to the state mental hospital for no less than 6 months.

Mr. McAllister provided CONREP with voluminous documentation regarding the client, including the police reports of the Merced robbery. What more conclusive proof could you have that the client was restored to sanity?  Mr. McAllister also requested that CONREP conduct an interview of the client. CONREP refused to interview the client!

Despite the overwhelming evidence of the client’s current sanity, on June 24, 2015 CONREP recommended that the client be committed to Napa State Hospital.  The prosecution joined in this recommendation.

However, there was a problem with CONREP’s recommendation.  Mr. McAllister pointed out to the judge that the section of the Penal Code on which CONREP relied for its decision had been changed the previous year (in California, any legislation passed in a calendar year becomes effective on January 1 of the following year unless it is designated emergency legislation).  The previous law had mandated that persons found not guilty by reason of insanity in serious felonies such as this one would be committed to the state mental hospital. On January 1, 2015 the law changed to allow the court to grant outpatient treatment if that was more appropriate for that individual, if this would not pose a danger to the health and safety of others.  On August 24, 2015 Kirk McAllister filed a motion urging the Court to grant outpatient treatment to the client, since CONREP had relied on an outdated law and because the client was restored to sanity.

CONREP graciously changed its position and agreed to interview the client.  The interview was conducted in Mr. McAllister’s office on January 15, 2016.

On January 29, 2016 CONREP submitted a new recommendation, advising the Judge to grant outpatient treatment.

On February 8, the Court ruled that the client would be granted outpatient treatment, meaning that he would be able to be home with his wife and small children while he received CONREP’s services.

Several lessons can be taken from this case.

First, the lawyer must keep up with the ever-changing laws that may impact a client.

Also, it is the lawyer’s duty to educate – respectfully, always respectfully — the judge and any other agency which may influence the judge’s decision in the case.

Finally, never take no for an answer.

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Anyone can be a victim of injustice – even the son of a District Attorney.

This case involved the shooting of a man after panicked partygoers were running from the scene where two other people had just been murdered. The police theorized that the client, driving a vehicle away from the party, aided a passenger in his van fatally shoot a man out the window as the man ran by.

The preliminary hearing is called a probable cause hearing, meaning that the standard for the judge to send the case on for trial is a low one, as opposed to the proof beyond a reasonable doubt requirement in a jury trial. For this reason it is rare that the prosecution loses a case at preliminary hearing.

In this case Kirk McAllister went on the attack at the preliminary hearing, using law enforcement’s own evidence. He entered the crime scene diagrams prepared by the police into evidence.  He questioned the witnesses using the crime scene photographs taken by the police. He called as a witness the state Department of Justice forensic firearms expert. Mr. McAllister brought forth evidence that a GSR (gunshot residue) test from swabs on the “victim’s” hands showed that in fact he was a shooter! The hearing which was expected to take 4 hours took 4 days.  Kirk McAllister proved that it was impossible for the crime to have happened.

At the conclusion of the evidence on the fourth day the judge not only refused to hold the client to answer; he took the rare step of making a factual finding that the crime did not happen. The Judge ruled as follows. “So based on all that I make the following factual finding: That Mr. Logan did not fire a gun from the Morse vehicle while on Westside Boulevard the evening of March 30, 2013….Therefore Mr. Morse is not held to answer…. Mr. Morse is released from custody. He’s to be unshackled”

(Merced County Superior Court case number   : see also Merced Sun–Star, November 15, 2014, page A1, “Murder Charges Dropped Against Merced DA’s Son”)

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Over 90% of the cases in the criminal system are concluded before trial.  For this reason the lawyer who throws down the glove early and refuses to attempt to negotiate a settlement is doing the client a disservice.

For example, in a recent case a popular restaurant in Stanislaus County was burned to the ground.  Kirk McAllister’s client was charged with arson.  The matter was complicated by the fact that the client had a prior conviction of arson.  If convicted with that prior, the client would have to be sentenced to 10 years to life.

Mr. McAllister negotiated a plea bargain with the District Attorney which resulted in the client being sentenced to 365 days county jail instead of the indeterminate sentence. With credit for good behavior the client served approximately 6 months on an ankle monitor—certainly preferable to the life sentence he was facing.

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September 4, 2013 – The client, a soldier in the United States Army, was the turret gunner in a tank that was blown over by an IED in Iraq.  After that he hurried home to Modesto for a preplanned leave. Four days after the tank explosion he was in a bar where an altercation broke out.  Acting on the instincts he had learned in war, he stabbed two people.

Specialist Carlos Melendez was later found to have been suffering from post-traumatic stress syndrome (PTSD).  Kirk McAllister presented a novel defense based on that diagnosis.  Dramatic testimony highlighted Melendez’ upbringing in war-torn Nicaragua through his heroic exploits in Iraq, where he saved the lives of many of his fellow-soldiers.  He received numerous decorations for those actions.

Based on this defense the judge reduced the charges to misdemeanors.

This decision allowed CPL Melendez to fulfill his twin goals: to stay in the Army and to gain his citizenship.  Melendez stated, “If I die in combat, I want to be buried as a United States citizen.”

The case was hard-fought but the defense was victorious.  Asked for a comment, Melendez said, “Mr. McAllister is a soldier for justice.”

(Name, comments, and photograph appear by permission of the client)

(Stanislaus County Superior Court, Case No. 1418559)

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April 16, 2013:  In an important case in Merced County, Kirk McAllister defended a well-known police sergeant against charges of drunk driving.  The Attorney General’s Office prosecuted the case, which largely consisted of the testimony of three civilian witnesses.

“McAllister zeroed in on one witness who testified that he and two others saw Pacheco drive up to his home the night of the DUI arrest.” (Merced Sun-Star, “Sheriff’s Sergeant Cleared in DUI Trial”, April 16, 2013, page A1)

Under Mr. McAllister’s relentless cross-examination, the main witness admitted that he had lied.

Mr. McAllister: And that was a lie? You have trouble saying that you lied, don’t you?

The Witness: The thing is I didn’t –like I said, I didn’t want—sure, I have trouble saying it.


Mr. McAllister: So that was kind of an agreement between the three of you?

The Witness: Yes.

Mr. McAllister: That you would lie, right?

The Witness: Correct.

The jury found the client not guilty, proving again why McAllister & McAllister, Inc. is “The law firm police officers choose when they are in trouble.”

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In an interview by the Chemical and Engineering News Kirk McAllister provided legal analysis of the criminal prosecution of UCLA and a chemistry professor resulting from the UCLA laboratory explosion which killed a researcher.  See Mr. McAllister’s commentary in volume 90, issue 52 of the Chemical and Engineering News ( )

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June 15, 2012 – In trial the testimony focused as much on dirty dancing as it did on the charged offense, driving under the influence of alcohol.

Mr. McAllister’s client was thrown out of a bar for “dirty dancing”.  Ironically, the bouncers were far more offended by his dancing than was his dance partner, who had egged him on. The client testified “She wanted me to be a bad boy—I guess I was!”

Not content with 86’ing him out of the establishment, the bouncers called the police and contended he drove his car in the parking lot, thus getting him charged with DUI.

The jury sided with Kirk McAllister’s defense and found the client not guilty—even though the blood alcohol level was 0.18%.  (Case number1427624)

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Marijuana Cultivation Evidence Thrown Out

The most common way that police gain entry into homes to search for contraband is by obtaining the consent of the occupant.  This often follows tips by nosy neighbors or anonymous callers on “drug hotlines.”  Almost by definition, the police in these situations do not have probable cause to get a search warrant – but they usually don’t need it since most people allow the police to search without a warrant.

In this case, Kirk McAllister argued that the police obtained consent from the client in the classic way: promising that if he didn’t consent to the search, they would get a search warrant and the children would then be taken by Child Protective Services (CPS).  After a long evidentiary hearing, the judge ruled that this amounted to a coerced consent, particularly because the police asserted that they would get a search warrant, not that they would merely apply to a judge for one.  This was a correct statement of the law.  The evidence of the marijuana cultivation was thrown out and the client’s case was dismissed.

In marijuana cultivation cases the two most important things to remember are that the police generally disrespect the medical marijuana law and that there is no advantage gained by willingly surrendering your constitutional right to be free from police searches without a warrant.  (Case No. 1421376)

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