Jury Ultimately Believes Man over Police Officer, But It Is Ultimately a Costly Experience –
Mr. Ortega went out to take out his battery, and for some reason was confronted by the police.
The next day, based on a lengthy discussion with members of the jury, the Deputy DA on the case, Jennifer Davis, dismissed the possession of a slungshot charge, so they will not pursue it. Mr. Ortega was only convicted of a misdemeanor for being under the influence of meth – a charge that he would admit to.
“He was charged with possession of three objects that were considered to be felonies,” Public Defender John Sage, Mr. Ortega’s attorney, told the Vanguard.
One of these weapons was considered a slungshot. “What he had was a lock on the end of a chain that he used to lock his spare tire on his truck,” Mr. Sage said. He shoved the lock into his pocket. The chain was dragging so he tucked it into his belt.
The other objects were considered dirks or daggers – a concealed stabbing instrument. “The first one is a tire tool,” he said, a tool used to rough up the surface of the tire to patch it up. “He found one of those in the surface of his tire which was flattened. He pulled that out and put it in one of his back pockets.”
The second was a knife that Mr. Ortega claimed he had been using to scrape rust off cables in the car engine. In the process of doing work, he had clipped his pocket knife on the back of his belt, according to Mr. Sage’s opening remarks.
Mr. Sage would explain to the jury that the defendant has been charged with three felonies for doing some work on his car in front of his residence.
However, the DA and the police that night would see it differently. Early in the morning on November 6, at 4:30 a.m., Officer Corey Fondersmith was dispatched to the Lincoln Apartments in Woodland.
He saw Mr. Ortega, on the ground floor of the apartments, by a green truck and holding a car battery. Officer Fondersmith told Ortega to put down the car battery, that he wanted to talk to him.
At this point he noticed a silver metal chain tucked into the front of Mr. Ortega’s belt and front pocket.
The defendant was jerking around, which led the officer to believe he might be under the influence of a stimulant. Moreover, it was cold outside, but the defendant was sweating a lot.
He told Mr. Ortega to turn around so he could do an officer safety search. Mr. Ortega interlocked fingers on back of head and spread his feet.
Officer Fondersmith called for backup because of concern for his safety.
He grabbed the chain, removed it from the belt and pulled it out of the pocket, and saw a metal lock. He showed Mr. Ortega the lock and asked what it was for.
Mr. Ortega, according to the officer’s tesitmony, said he used it for protection and intimidation.
Officer Fondersmith testified that he believed it to be a “street level slungshot.”
He then found an open blade in back of his belt and removed it. He then finished the pat down search, but nothing else was found.
Mr. Ortega gave the officer permission to search his pockets. Officer Fondersmith then found another knife, and an ice pick/tire punch.
Under cross-examination, the officer acknowledged he was called on a noise complaint against Mr. Ortega’s apartment, but there was no loud music when the officer arrived.
The officer remembered seeing a flat tire on the truck.
Mr. Sage asked the officer, “You’re not a tool guy, are you?” Officer Fondersmith had not referred to it as a tire punch in the prelimary hearing.
Mr. Sage continued, “So this is a tool. It is used by people who get a nail in their tire, to rough up the hole so a plug will stay put.”
Mr. Sage also noted that while they took pictures of each of the weapons, they did not take a photo of the battery. He noted Mr. Ortega was holding the battery with two hands.
Fernando Ortega would take the stand in his own defense. He acknowledged smoking meth at the party. He went outside because his friend said his lights in the truck were “piss yellow” and he believed he had a dead battery.
He saw that he also had a flat tire, that there was a tire punch sticking out of his tire. He checked his car but it would not start.
He took his hunting knife out of the truck. He detached the battery and cleaned off the cables with the knife. The truck still didn’t start so he removed the battery from the car.
He saw the officer at his door banging loudly, and asked the officer what was going. The officer told him to come toward him.
Mr. Ortega collected his things. He already had the tire tool in his pocket (he had pulled it out of his flat tire). He had clipped his open knife to the outside of his belt, facing upwards. He had put the lock and some bug spray in his pocket, and put the chain through his belt. He closed the hood, picked up the battery and headed toward the officer.
He testified that he did not have the knife or chain on him before the officer showed up.
He said that when he said he had the chain for protection and intimidation, he was joking and laughing. However, the DA brought Officer Fondersmith back to the stand to testify that Mr. Ortega had said the chain and lock and knives were for protection.
He said the defendant told him he was afraid of the kids that lived there. They had this conversation while driving. According to the officer, the defendant never said he was joking, never laughed or smiled.
However, the officer thought he recalled Mr. Ortega saying that the tire punch came from his flat tire.
Deputy DA Jennifer Davis, in closing, argued that Mr. Ortega said the weapons were for protection and intimidation consistently, that is, until he had to testify and he made up this innocent story. Officer Fondersmith had no reason to be dishonest.
The defendant’s credibility can be questioned, according to Ms. Davis. She said he couldn’t perceive the situation very well because he was high, he had a personal interest in the outcome of the case and his story kept changing. Also, he had a couple of prior felony convictions.
Mr. Sage countered that there had to be some sort of evil intent, mens rea, in order for the items to be “weapons. ” The prosecution wants them to be weapons, but a closer inspection shows that these were tools, not weapons.
For the slungshot to be readily used, he would have had to put the battery down first. Missing from the officer’s police report is the fact that Mr. Ortega, when confronted by police, was carrying a full size, 40-50 pound truck battery.
The slungshot had not been modified at all. If the officer had bothered to look on Ortega’s key chain, he would have found a key that fits the lock, indicating that he uses it as a lock and not as a weapon.
He had the tire punch in his pocket. Why? Because he pulled it out of his tire.
In the end, the DA argued that, based on Mr. Ortega’s past felony convictions, he needed to go to prison, whereas Mr. Sage believed that no crime had occurred at all. The jury would agree with Mr. Sage, and only convicted Mr. Ortega of what he had admitted to, being under the influence of meth.
Mr. Sage told the Vanguard that the jury foreman said he has a cable that he uses to lock his hood down, and it is about the same size but not quite as substantial as the chain was.
“He has a lock on the end of his cable too, and he was concerned that ‘I could be arrested walking to my front door with my hood cable,’ ” he said. They believed Mr. Ortega was actually working on his car at the time, so there was no crime.
While Mr. Ortega was ultimately vindicated by the jury, the incident took an enormous toll on him personally. He was in custody since the date of the arrest on November 6.
As a result of that he lost his apartment. Mr. Sage was not sure if his relatives successfully held onto his truck for him.
Most tragically, his daughter died while he was incarcerated. She was in her thirties or forties. He was not able to arrange to be released to attend her funeral, due to how quickly it happened.
“This is a man who did suffer tremendously,” Mr. Sage added.
—David M. Greenwald reporting