HAYWARD -- The felony conviction for an attorney who killed a Chinese tourist in a hit-and-run crash in 2011 was reduced to a misdemeanor by an Alameda County judge on Friday over "strenuous objection" by prosecutors, according to the district attorney's office.
Hayward Judge Michael Gaffey also changed the terms of the sentence he handed down to Spencer Freeman Smith just two weeks ago, much to the chagrin of an American friend of the man Smith killed.
"Obviously, I am not a judge or a lawyer but, for me, using common sense, it's an outrageous decision," said Dr. Arnold Owens of Oakland. "Everything has gone so much in favor of the defendant, it seems like some shenanigans are going on."
Smith's attorney Dionne Choyce denied that his client received special privileges.
"This is not a case about special treatment, the case is about a tragic accident," Choyce wrote in an email.
Smith, 36, was living in San Ramon working as a San Francisco labor attorney on March 12, 2012 when, after a night of drinking with a paralegal from his firm, he fatally struck 57-year-old Chinese financial adviser Bo Hu on Dougherty Road in Dublin, prosecutors say. Hu was in the country for his fiancee's relative's graduation and was killed while he was walking a bicycle.
Smith did not stop or even brake at the scene and was apprehended by Dublin police investigators after they matched broken vehicle parts left at the scene to his brand new Mercedes-Benz sedan. Choyce said in September that the married father of two had to move his family to Orange County after Hu's death because Smith had been receiving death threats.
A trial was pending in November 2014 when he changed his plea to no contest to charges of felony hit-and-run and misdemeanor vehicular manslaughter. Judge Kevin Murphy was supposed to have sentenced him in March, but Murphy recused himself because he personally knew several of the people who wrote letters to the court on Smith's behalf. Though never stated on the court's record, it is known around the Hayward courthouse that Smith's mother worked for the Alameda County Superior Court for decades.
Smith then withdrew his plea and was scheduled for trial again when he once again pleaded no contest before Judge Gaffey. Gaffey had discretion to sentence Smith to more than three years in prison. But after citing Smith's lack of criminal history and the factors that would have contributed Smith to not being able to see Hu on the side of the road, like Smith's prosthetic right eye, Gaffey sentenced Smith on Sept. 25 to five years felony probation and one year in jail.
Gaffey said then that Smith could apply to serve the jail time at home via electronic monitoring after serving 30 days in custody. He first ordered Smith be remanded into jail custody that day, Sept. 25, but then gave Smith a weeklong reprieve to surrender himself after Smith announced that his wife's current pregnancy is wrought with complications and he was the only person available to take her to an important doctor's appointment.
On Friday, Smith was still out of custody. After reducing Smith's felony conviction and considering a doctor's note about the wife's pregnancy, Gaffey said Smith could serve his 30 days in jail after 11 months of electronic month monitoring, DA's office spokeswoman Teresa Drenick said.
Gaffey also ordered that Smith not drink alcohol and wear an alcohol monitor during the term. Now, Smith is on misdemeanor instead of felony probation.
Choyce alleged that Hu was under the influence when he was walking his bike.
"He should not have been there. Anyone driving down that dark roadway could have hit Mr. Hu; it just happened to be Mr. Smith," he said. "The judge recognized that this was a tragic accident and Mr. Smith was in a more vulnerable situation because he is blind in his right eye."
Owens said there has been a lot of victim blaming in this case that he called irrelevant.
He said he doesn't know what he is going to tell Hu's family, who he has been assuring for years about that the American justice system.
"I'm embarrassed, as an American, to talk to them," Owens said. "After watching how this case went, I have no faith whatsoever that he will ever spend one day in jail."
Contact Malaika Fraley at 925-234-1684. Follow her at Twitter.com/malaikafraley.