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Crime and Punishment

Nineteen-year-old Brendon Rose kicked a defenseless kid in the head, and the criminal justice system kicked back. Does he deserve to spend eight years in prison?


In the dark, early hours of a March morning in 2003, Brendon Rose sat silently in the passenger seat of a friend’s 1973 Camaro as it sped away from a spring break party in Santa Clara. Some of the other teenagers in the car would later testify that 19-year-old Rose seemed worried.

At one point during the drive back to Pleasanton, he said to no one in particular, “I kicked that kid in the head.”

At about 9:30 the evening before, Rose, a student at Las Positas Community College in Livermore, had hooked up with two kids he’d gone to school with at Amador Valley High in Pleasanton. The three drove to Santa Clara University to visit some friends, and to check out the prestigious Jesuit college’s renowned Bellomy Street party scene.

It was a warm night, and the mood in the tree-lined neighborhood was celebratory. Partiers circulated from house to apartment to backyard openly carrying red plastic “kegger” cups, and bottles of beer and wine. But as night turned to morning the mood began to sour.

At about 1:30 a.m., Rose left his friend’s apartment after a few rounds of Beer Pong, which involves bouncing ping-pong balls into plastic cups and guzzling beer. When Rose got outside, three SCU students walked up to him, someone said something insulting, although no one can remember what the remark was, and one of the SCU students slapped Rose in the face.

Humiliated, Rose did not fight back but instead exchanged threats to fight later that night. He then made a call for backup to his twin brother, Adam, who was with some friends at the Granada Bowling Center in Livermore. Adam and six other teenagers, four guys and two girls, jumped into two cars and drove to Santa Clara.

About 20 minutes after Adam and his friends arrived, an SCU student called the Santa Clara police, reporting that several young men were having a loud argument and threatening to fight on the corner of Bellomy Street and Lafayette Way. According to one witness, one of the Rose brothers was involved in the argument. Police arrived in two squad cars, saw no fight, and left.

But before the cops had pulled away, another fight was already brewing. It had started when someone tripped Michelle Farmer, one of the kids who rode down from the Tri-Valley with Adam Rose, as she ran down the sidewalk to greet a friend. Farmer wasn’t sure who had tripped her, but her girlfriend said she saw SCU student Charles Nichols do it.

When another of the Pleasanton kids, a guy named Trevor Ybarra, saw Farmer had cut her knees when she fell and was crying, he confronted Nichols, wrestled him to the ground, and then released him. Things didn’t explode right away, but battle lines were drawn. On one side were Nichols and some SCU students and their friends from other schools, and on the other were Farmer’s Pleasanton friends, including Brendon and Adam Rose.

Nichols called his SCU roommate on his cell phone and asked him to come help him fight. When the roommate arrived a few moments later, Nichols challenged Ybarra. According to witnesses, Ybarra at first refused to fight because Nichols was so drunk, but Nichols hit Ybarra. Soon there was a group of people punching, gouging, and wrestling in the middle of the street.

Standing on the sidelines was Jed Bober, an affable 21-year-old from Gilroy. Like Brendon Rose, he went to another college and had headed to Bellomy Street to visit some friends.

Bober and his family declined to be interviewed for this article, but according to friends who were with him that night, Bober initially tried to avoid fighting. But at some point he stepped in. According to some witnesses, Bober was simply responding to a friend who had called for help, others said he was trying to pull combatants apart, and still others said that he was one of three people who during the course of the fight ganged up on Adam Rose.

While accounts of what occurred on Bellomy Street that night are sketchy, it is fairly certain that Brendon came to Adam’s aid by pulling people off of him.

What is absolutely sure is that, at one point, Brendon Rose punched Bober in the head, instantly knocking him out. Bober tipped over backward like a felled tree and struck the back of his head on a concrete driveway with a thud that one witness compared to a “coconut busting.” The sound was so loud that the fighting stopped.

What happened next would be at the center of the Santa Clara County district attorney’s case against Brendon Rose, as well as of the public debate over what type of person he is.

By all accounts Bober was unconscious. He was lying in the street with his head and shoulders on a driveway. His breathing was labored, and he was ashen. As the partiers hanging out on Bellomy Street watched, Rose stepped onto the driveway, drew back his leg, and kicked Bober in the temple with enough force to fracture his skull.

The ferocity of the kick stunned the already quieted crowd. The two Pleasanton girls screamed and ran toward the cars they’d come down in. Brendon Rose also headed for the cars. But Adam Rose took his time leaving the scene, witnesses said. Adam stayed near Bober, “taunting” Bober’s friends and telling them they’d gotten what they deserved. Adam would later testify that he had been too busy fighting off his attackers to actually see his brother kick Bober.

Once all the kids from Pleasanton had piled into their cars, they sped out of the neighborhood toward Interstate 880.

Meanwhile, instead of calling 911, Bober’s friends carried him to a nearby apartment, dropping him twice in the process. Bober had regained consciousness, but he was vomiting blood and was incoherent. One of his friends made the insensitive comment that Bober “sounded like he had Down Syndrome.” While police officers called to the scene were right outside, Bober’s friends kept him on the floor of the darkened apartment before driving him to the hospital themselves.

Once there, Bober’s condition worsened, and he eventually slipped into the coma in which he would remain for almost two weeks. Severe swelling was putting intense pressure on Bober’s brain. Doctors drilled an intracranial pressure monitor through his forehead. They then prepared his parents for the possibility that their son and only child might die during the next 72 hours.

In the days after the street fight, the Santa Clara County District Attorney’s Office and the Santa Clara Police Department put a high priority on investigating what had happened.

Within two weeks, police arrested Brendon Rose outside his father’s Pleasanton condominium as he was getting into his 1990 Acura. He was booked on suspicion of attempted murder.

Lead investigator Sgt. Larry Whitman, who compiled a thorough report on the case, says the cruelty of the attack on Bober and the severity of the injury made the incident more than just the kind of thing that can occur when kids get totally out of control on alcohol.

“If this was just a typical drunken brawl, we would never have investigated with this level of intensity,” he says. “This was a vicious attack, and when you have an injury like the one in this case, it’s elevated way above a ‘boys will be boys’ type of fight.”

Rose’s case went to a Santa Clara County grand jury, and seven months after the melee, he was indicted on reduced charges: two counts of battery with serious bodily injury and one count of assault by means of force likely to produce great bodily injury.

Rose’s parents had hired an attorney, John Noonan, who is known for settling cases via plea bargains negotiated through his many long-standing relationships in the court system, particularly in Alameda County. But when the Santa Clara County District Attorney’s Office was unwilling to further reduce the charges against Rose, Noonan still recommended the 19-year-old not go to trial. He advised Rose to enter a plea of no contest and essentially throw himself on the mercy of the court. Rose’s parents, Diane, a personal fitness trainer, and Ken, a used-car sales manager, who are separated, say that Noonan told them over and over that the only way to keep their son out of prison was to plead no contest. They say he even hinted that their son might simply have to wear an electronic ankle bracelet and be confined to his father’s condo, where he was living at the time.

In January 2004, Rose followed Noonan’s advice and pleaded no contest.

After the plea, the Roses tried to ease their worries about the pending sentencing by focusing on a positive aspect of the case: Bober had survived his injuries.

He had spent a month in the hospital, during which time he lost 40 pounds from his lean six-foot frame, and throughout an extensive rehabilitation period, he reportedly suffered headaches, light sensitivity, vertigo, vision impairment, and anxiety. He had lost a year in school and—the Bobers have said—his sense of smell. But ultimately he had made a good recovery and was on his way to resuming his former passions of skiing and snowboarding.

The Roses also counted in their favor the fact that their son had no history of violence, and had strong support from people who had known him all his life. At the sentencing, numerous respected community members—including the vice principal of Amador Valley High School, a veteran Fremont police officer, and a Pleasanton firefighter—spoke on Rose’s behalf.

Diane and Ken Rose didn’t see how the judge could hand down a harsh sentence.

But Santa Clara County Deputy District Attorney Bud Porter, the probation officer assigned to the case, and the Bober family and friends lobbied for a tough sentence, and in May 2004, Santa Clara County Superior Court Judge Diane Northway gave Rose three years in state prison for the assault charge. Then, in a move that stunned the Roses, Northway added a five-year enhancement for causing great bodily injury.

During the proceedings, Judge Northway said that despite Rose’s reputation in the community, she didn’t believe his action was a momentary aberration. “I’m not sure if Mother Teresa had committed these acts,” Northway said, “One would be able to find that there were sufficiently unusual circumstances. But certainly the quality of one’s contribution to the community would be taken into account here, but I just don’t see those contributions as rising—for this person’s character—as rising to the level sufficient to overcome the cruelty, viciousness, and callousness that was demonstrated when the defendant kicked Mr. Bober in the head.”

The sentence enhancement meant Rose would serve a minimum of six years and ten months. In addition, the defendant, whose job before he went into prison was as a part-time server at Appleby’s in Pleasanton, was ordered to pay $153,000 in restitution for Bober’s medical costs. Rose is being charged 10 percent interest, which means that if nothing changes with his situation, he will owe about $300,000 by the time he has served his minimum sentence.

The day after the sentencing, Diane Rose, a buff, energetic 52-year-old who looks much younger, found herself in a Kinko’s copy center making 8- by 10-inch copies of her son’s photograph.

“I was going to put the pictures on a sandwich board and walk around Pleasanton until someone paid attention to what had happened,” she says. “Then I got a call from a friend who said, ‘If we’re going to do this, let’s do it right.’”

Thus began a public relations war involving a Save Our Rose Web site, T-shirts, movie screen ads, signs, a rally, and a letter-writing campaign. The war pitted the Santa Clara County court system against a mother and a father with few resources—and a certainty that their son had been judged too harshly.

The Roses maintain that the kick to Bober’s head was not thought-out. They claim it was an overreaction to the frenzied and terrifying atmosphere of a street fight.

“It was a very bad decision influenced by three things,” Ken Rose said at the sentencing, “fear, alcohol, and testosterone.”

Diane Rose says her son was especially fearful during the fight because his twin brother was being ganged up on. “There is a special bond between twins that is difficult for most people to understand,” she says. “I’m their mother, and I don’t even fully understand it.”

She adds that Deputy District Attorney Porter characterized her son as negatively as possible in his report to the judge. She says that Porter’s tone fell in step with a constant drumbeat of character assassination that began with the police investigation.

“There was something about the way they were coming after Brendon from the very beginning that just didn’t seem right,” she says.
It was Porter who asked the judge for the eight-year sentence, arguing that the crime was “vicious,” “callous,” and “cruel,” words the judge echoed at the sentencing. Porter says the kick was particularly egregious because Bober was unconscious and not a threat to anyone.
“There was no excuse for it. Eight years is a long time for a 20-year-old, but the sentence is totally justifiable,” says Porter, seated in his sparsely decorated office near the Santa Clara County Hall of Justice. “Everyone was concerned for the guy on the ground, and Brendon walks over and kicks him.”

Porter, a 34-year-old who carries himself with a certain amount of authority, pauses as though he’s in a courtroom. “Where does that anger come from?”

The police interviewed Rose’s peers, former teachers, coaches, and employers during their investigation, but were unable to find anyone who knew him to be violent. In fact, most said he was a friendly, hard-working, and well-mannered kid who wasn’t even known to use foul language. He had, however, had three run-ins with the Pleasanton police involving alcohol, and one involving marijuana, that occurred when he was 16 and 17 years old—although the cases were handled “informally” and never went to court. (It was also noted in court that after Brendon was arrested and before he was sentenced, he violated the terms of being out on bail by testing positive for alcohol in a routine drug test.) Unable to find any anecdotal evidence of a violent disposition, police went to Ken Rose’s condominium and confiscated a certificate Brendon earned in wrestling and home videos of Brendon and Adam in karate class when they were eight or nine years old and playing football in high school. The police also took a homemade poster—with pictures of Brendon playing football and the words “Everyone knows the Rose will kick yo’ ass,” reportedly given to him by a cheerleader—as evidence of a violent nature.
Rose’s friends say they were shocked at the way he was characterized. To the parents of his high-school girlfriend, Lindsay Adams, he was the type of guy that parents wanted their daughters to bring home.

“I can tell you he’s a quality kid we trusted completely” says Sue Adams. “We think Brendon is a great person. We thought so before this whole thing, and we still think so.”

Amador Valley High School Vice Principal and football coach Rick Sira says he knew Brendon quite well during his four years in high school. Sira was one of the first people Santa Clara police questioned during their investigation.

“When the detectives came into my office, closed the door, and said one of our students was involved in a situation where another kid ended up in a coma and that Brendon was involved, I was in shock,” Sira says. “If Brendon could be involved in something like this, almost anybody could. Situations like this happen at 100 mph. Who knows how anybody is going to react?”

Diane Rose says she has begun to suspect that her son was a convenient scapegoat for the out-of-control partying on Bellomy Street. Such a thing would be hard to prove, but she says she questions why two Santa Clara police officers who arrived on Bellomy Street just before the violence erupted almost immediately turned around and left. According to police reports, they left because they saw no actual fighting, but at that time there were young people on the street, some of them underage and most of them drunk. Michelle Farmer had just been tripped and was out on the street, and the partying was in full swing—the police department had received several calls from neighbors who complained about the noise that night—even though it was nearly dawn. Santa Clara Police Chief Stephen Lodge insists there is no coddling of partying SCU students by members of his force, and says there is a “zero-tolerance” policy in the area. Neither Santa Clara Mayor Patricia Mahan nor several other city council members would comment on the subject.

SCU administrators also refused to comment on whether their students faced any charges or disciplinary action for their involvement in the melee. But according to an inside source at SCU, none did. None was disciplined for showing extremely poor judgment when they carried, dropped, and hid the injured Bober after the police had arrived, rather than calling 911 immediately. SCU student Charles Nichols—who reportedly tripped Michelle Farmer, called his roommate to come help him fight, and later lit the fuse of the brawl by hitting one of the Pleasanton kids—did not even face a conduct review by the university, according to the source.

Rose’s parents and supporters think he’s been asked to pay the price for all the drunkenness and violent behavior that went on that night. What’s more, they’ve tracked down a case showing that Judge Northway has gone much easier on other defendants.

In October of 2003, William Raymond Hill, a 21-year-old with a long criminal history that included assault with a deadly weapon, methamphetamine possession, and witness coercion, purposely drove a 2.5-ton SUV up onto a Palo Alto sidewalk to run over 23-year-old Chad Snow while Snow lay injured. Snow died from his injuries several days afterward.

The Santa Clara County District Attorney’s Office charged Hill with gross vehicular manslaughter and assault. Like Rose, Hill pled no contest before Judge Northway. But Hill’s sentence was quite different: four years.

“What does that tell you?” asks Michael Cardoza, Walnut Creek attorney and legal analyst for The Today Show and Larry King, whom the Roses have hired to take over the case. “You hear that someone loses their life, and Brendon, who didn’t kill anybody, gets an eight-year sentence? To me that’s not justice.”

The Roses, who paid $25,000 in legal fees to Noonan, their son’s first lawyer, have borrowed from friends and family to hire Cardoza. Because there was no trial, there cannot be an appeal. Instead, Cardoza has filed a writ of habeas corpus, which could reverse Rose’s no-contest plea and allow him to take his case to court or possibly renegotiate the sentence. At the time this article went to press, the writ was still pending, with no word on when it would be reviewed by the courts.

The writ asserts that Rose “was deprived of the effective assistance of counsel,” despite his representation by Noonan, who refused to be interviewed for this article. As to whether the writ will succeed, Cardoza says, “It will be an uphill battle, but we are cautiously optimistic.”
Porter, when asked about the validity of Cardoza’s writ, waves it off. “It’s just buyer’s remorse,” he says. “Brendon pleaded no contest, and the family is upset the sentencing didn’t go his way.”

The California Correctional Institution covers 1,700 acres of wind-scoured plateau high in the Tehachapi Mountains, which separate the fertile San Joaquin Valley from the arid Mojave. The prison was opened in 1933. Over the years it has been expanded several times and, although designed to hold 2,700 prisoners, it now houses 5,300 inmates in several clusters of low-rise concrete buildings.

The austere visiting room at CCI is clean, and the scent of industrial cleaning solvent hangs in the air. Visitors and inmates gather around tables that are very low to the ground to discourage both the passing of contraband and sexual contact. Just off the visiting room there is a small patch of uncultivated earth surrounded by high walls, where inmates can take their young children to play.

Brendon Rose’s youth and collegiate good looks seem out of place, compared to the older, more seasoned prisoners in the visiting room. He has been in prison for a year now, and celebrated his 21st birthday in February.

Rose is remarkably upbeat about his situation. He says he keeps to himself mostly, and has been playing basketball and jogging in the limited space of the yard. He also works processing new inmates, doing paperwork and typing, for 18 cents an hour.

He spends much of his free time reading and playing guitar, and has begun to dabble in writing song lyrics. He says he’s desperate to find college-level correspondence courses so he can continue to study economics and Spanish. However, he’s had little luck, because most courses are available only online, and CCI prisoners have no access to the Internet.

Diane and Ken Rose make the nine-hour drive to CCI and back on alternate weekends. Adam Rose also makes the trip whenever he has the time, as do some of Rose’s high-school friends. Rose says he looks forward to the visits because they give him something to focus on during the week. He says over and over how grateful he is to his parents for all they’ve done to try to help him.

He says the fact that he is in prison still seems abstract. “This is the most real thing that has ever happened to me, but at the same time it’s not,” he says. “Sometimes I’m on the yard or in the day room and I look around and realize where I am, and it just doesn’t seem real.”
He says he has spent a great deal of time thinking about the fight and especially “the kick.” Despite the fact that Bober was not a threat at the time Rose kicked him, Rose says the fight was confusing and insists he was still in the mode of protecting his brother.

“Everything was happening so fast—and it just happened,” he says. “I didn’t think about it beforehand, and I certainly never planned it.”
Rose relaxes in his chair as the conversation moves away from that night and onto the more comfortable subjects of sports, travel, and books. The sun begins to lower toward the peaks of the Tehachapis, the visiting room darkens, and a shadow grows across the small patch of ground where some of the inmates’ children have been playing. As the other prisoners begin to say goodbye to their families before being led back into the main prison block, Rose gets quiet for a moment before bringing up the fight one more time.
He says that whether he gets a sentence reduction or not, he knows he has to take responsibility for his actions.

“I feel terrible about what happened to Jed,” he says in a low voice, and brings his gaze up from the low tabletop. “I wish I could take it back.”

John Geluardi is a Richmond-based freelance writer whose work has appeared in the Contra Costa Times and the East Bay Express.

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