Analysis: Picnic Day Preliminary Hearing – What Is Likely to Occur?

Illustration by Kate Mellon-Anibaba

If all goes as expected, the preliminary hearing for the Picnic Day 5 will occur today. The Vanguard confirmed with Attorney Mark Reichel, the defense attorney representing Elijah Williams, that the hearing is likely to go forward.

Given the number of defendants in the case, the fact that the April 23 incident is going to preliminary hearing less than four months out is actually quite remarkable.

For the most part, the defendants are charged with Penal Code section 245(c) which is assault by means of force likely to produce great bodily injury on a peace officer. They are also charged with PC section 69, resisting arrest by force. As we have noted previously, the assault with a deadly weapon charge for the bottle throwing incident has not be charged on any of the five defendants.

A preliminary hearing functions much like a quasi-trial. The prosecution puts on witnesses and the defense attorneys can cross-examine them.

There are several main differences between a preliminary hearing and a trial.

First, the trier of the evidence is the judge, not a jury. The judge determines whether the prosecution has presented enough evidence on each of the counts to hold the defendants over for trial.

That brings me to a second difference. The standard for conviction at trial is proof beyond a reasonable doubt. For a preliminary hearing it is probable cause. That is a very low standard of evidence. Usually, if the witnesses make credible allegations of a criminal act, a judge will allow a jury to decide. There are cases where the evidence ends up being weak and the judge will tell the prosecution that there is enough evidence to hold the defendant(s) to answer, but you may have trouble getting a jury to reach a unanimous verdict at the higher standard.

The third major difference is that, while the defense can put on their own evidence, they don’t normally. It is normally to their advantage to hold onto exculpatory evidence since the burden at the preliminary hearing is so low.

So what is likely to happen?

First, with five co-defendants that means five defense attorneys cross-examining the witnesses. I would say chances are we will have this come back at least for a second day.

Second, most of the time, there is enough evidence to hold the defendants over on the main charges. The question is, will a charge be dropped? Will one of the defendants have less criminal liability?

Third, we will find out what evidence there actually is. The police chief has claimed from day one that they have clear video evidence – well, here is where we will see it.

That will give us a chance to evaluate the strength of the prosecution’s case. The defense will likely, as we stated, hold back their best cards at this time. We fully expect this to end up being an effort by the defense to claim that the defendants did not know these were police officers and to allege self-defense against aggressive and unreasonable force. But that may wait until the trial.

We have pointed out in previous pieces a few key points that we will learn more about today.

First, no one is charged with assault with a deadly weapon (Penal Code section 245(a)(1)).  Instead, the defendants are charged with the 245(c), the assault on a peace officer using means of force likely to produce great bodily injury.

As we noted in a previous column, when Romeo Lopez was arrested, he was the one charged with assault with a deadly weapon on a peace officer – but the DA cut a deal with him and he will be a witness for the prosecution.

Second, to reiterate, we will finally learn what the prosecution has in terms of video evidence.  We have seen the wide-angle view from the dash cam and we can see what happens, but we do not know what was said.

On video, you can watch the incident develop.  You have a group of people congregated around a house party – some have gone into the street and were at least partially obstructing a lane of traffic.  The police van, unmarked, does a U-turn and ends up pulling directly into the crowd of people.  That action affects the group that is large but peaceful, and clearly angers some of them.

It appears that words are exchanged, and at one point Sergeant Stephen Ramos is shown opening the door into the crowd – and at this point punches are thrown.  There are lots of questions about what was said – as we don’t have audio.  There are questions about who threw the first punch.  But, tactically speaking, the handling of this was a huge mistake, to the point that the city has already changed some of their policies.

But the key to the criminal charges is going to be whether the individuals knew or reasonably should have known that these were police.  You had at least two of the men in plainclothes.  While the police had badges, the witnesses said they were not visible and that the police never identified themselves as police officers.

The defendants are also charged with a violation of Penal Code section 69.  There are actually two types of obstruction or resisting arrest, one is PC section 148, which is a wobbler, and the other is the more serious PC 69, which is resisting with force or violence.

Under PC 69, the individuals are accused of “willfully and unlawfully attempt(ing), by means of threats and violence, to deter or prevent …  an executive officer, from performing a duty imposed upon such officer by law and did willfully, unlawfully, and knowingly resist, by the use of force or violence, such officer, in the performance of said officer’s duty.”

If you read the jury instructions for PC 69 (CALCRIM No. 2652) you will see some key elements: (1) defendant used force or violence to resist an executive officer; (2) when the defendant acted, the officer was performing his or her lawful duty; and (3) when the defendant acted, he or she knew that the executive officer was performing his or her duty.

Clearly, the last two portions of that jury instruction are going to be critical.  An interesting aspect of California law is that a citizen is in effect permitted to resist unlawful arrests by police.  The jury instruction notes that a peace officer is “not lawfully performing his or her duties” if they are either “unlawfully arresting or detaining someone” and/or “using unreasonable or excessive force in his or her duties.”

The People have the burden of proving beyond a reasonable doubt that the officer was lawfully performing his duties as a peace officer, and if the People fail to meet this burden, the jury is required to find the defendant not guilty of the PC section 69.

So yes, it greatly matters if the officers failed to identify themselves – that is a key element in both charges, and it matters if this is seen as either an unlawful arrest (because the officer is seen as instigating the confrontation) or excessive force by the police.

As I have previously argued, the most likely defense here will be a claim of self-defense.

Self-defense according to the law has a three-part requirement.  First, the individual had to reasonably believe that he or she was in danger of great bodily injury.

Second, he or she had to reasonably believe that immediate use of force was necessary to defend against that danger.

And third, he or she had to use no more force than was reasonably necessary to defend against that danger.

Here it again comes down to whether the jury believes that the defendants knew or should have known that these were police officers performing their lawful duty.  The defense is going to have to attack both parts of that – the identification issues will be laid out, but the lawful duty aspect may be equally important.

However, given the nature of preliminary hearings, a lot of this defense may not come out today.  The preliminary hearing is where the prosecution has to make its case that it has enough evidence to maintain the charges on the defendants, they do not have to prove guilt beyond a reasonable doubt and, therefore, the defense will save its best arguments for a trial.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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