Was a Man Fixing His Truck or Concealing Deadly Weapons?

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Yolo-Count-Court-Room-600Jury Ultimately Believes Man over Police Officer, But It Is Ultimately a Costly Experience –

Fernando Ortega, on November 6, 2010, was having a belated birthday party at his home when his friend informed him that he had left the light on in his truck.  He saw the lights on his car had dimmed and believed he had a dead battery.

Mr. Ortega went out to take out his battery, and for some reason was confronted by the police.

Last week, a Yolo County jury acquitted Mr. Ortega of both felonies of possession of a dirk or dagger, while they hung 11-1 in his favor on the first count, possession of a slungshot (traditionally a maritime tool with a weight at the end of a long cord).

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

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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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15 thoughts on “Was a Man Fixing His Truck or Concealing Deadly Weapons?”

  1. Ryan Kelly

    He needs to stop smoking meth and not live at the Lincoln Apartments…and maybe not even live in Woodland. It sounds like he can’t win living there. But most importantly, he needs to get off of the drugs.

  2. E Roberts Musser

    dmg: “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.”

    And that is the real issue here – the defendant, bc he was high on meth, did a very foolish thing by not being straight w the police officer. As a result of his meth use and foolishness in admitting (however jokingly) that he used the objects found on him “for protection”, i.e. as weapons, the end result was a stint in jail, the trial, and the misery that went with it. And of course his previous criminal record made him even more vulnerable in regard to these charges of carrying a concealed weapon (I’m assuming that is what the felony charges were?). Stupid, stupid, stupid…

  3. Mr Obvious

    Let’s not go to far in painting Mr Ortega as a victim of our system. At two points prior to the trial a judge had the ability to say probable cause didn’t exist for the arrest; one upon arrest when the officer filled a probable cause declaration which is is always reviewed by a judge, the second is at the preliminary hearing.

    Here is a guy out in the middle of the night, high on meth, and had things in his possession that could easily be deadly weapons. In the end he was guilty of bad judgment. The real story will be if Mr Ortega learns from his mistake, recognizes the costs of drug use, and cleans himself up.

  4. David M. Greenwald

    Elaine: The plea offer was prison time. He beat the plea offer obviously. It’s actually very rare that I have seen the plea offer beat what a person gets at trial. I got stats from the public defenders office, they are a few weeks old now, but at least up until the Moses case, they had beaten the offer every single case they took to trial this year. Think about that.

    Mr. Obvious: Probably cause is a very low standard. The fact that an officer testified as he did and found what he found is enough. Remember, all probable cause at a prelim means is evidence introduced, best possible light, doesn’t matter if it is credible or refuted by other evidence, that is the jury’s job.

    Final point: Was it dumb for Ortega to party too hard, smoke meth, drink alcohol? Of course. But no dumber than what many people do each day. The problem was you have a guy who is carrying a heavy battery from his truck, and he has tools on him, and you are going to leap from tools to concealed weapons? The joke about the weapons btw didn’t happen until he was already in custody.

  5. David M. Greenwald

    Let me give you an example of how this works. The Nicholas Benson case, Judge Fall reduced the charge of resisting to a misdemeanor because none of the police had alleged he had used force to resist. Had even one made that allegation, that would have been enough to show probable cause that he had committed a felony. It’s a very low bar.

  6. Roger Rabbit

    Not sure if everyone knows this, but with the Drug Prop that passed, someone arrested for just drug charges is eligible for drug program and NO jail. Because of that, the DA has given direction that if you just get someone for drugs they will only get drug program unless there is another charge. That is code for make sure if you arrest someone for drugs to have another charge so I can charge other felonies, prevent just rehab, go to trial and get some jail time.

    So very typical ego from the DA. The people vote on an issue and then once it is passed, he finds ways to go around it and defeat it.

    Has been going on since that Prop passed.

  7. Fight Against Injustice

    This is definitely another case of overcharging. Why? If the man is guilty for drug use, then charge him for that.

    Obviously the jury also felt that these other charges were not necessary.

    This is a continuing problem that we keep seeing. The DA keeps overcharging. Why?

  8. David M. Greenwald

    What I find amazing is that I always get castigated when I disagree with a jury that has convicted someone of a crime. But here is a case where the jury saw this as a clear overreach by the police – to the point where the foreman was actually concerned about his own safety, and everyone is rushing in to defend the police and prosecutor in this case.

    Again, the guy was carrying a forty pound truck battery, he was clearly working on his car. Some of you apparently think that doing drugs means that you intend to commit a whole host of other crimes. Most people who do drugs, just want to party, or relax, or self-medicate. The guy was partying hard, no doubt. But to try to turn that into criminal conduct is ridiculous.

    There are a handful of types of cases that concern me the most in this county, but by far the ones most rife for abuse, along with gang prosecutions, are these minor incidents that are blown into serious enough crimes that would warrant jail time.

    As I’ve said before people get murdered in this county, people try to kill other people, and people get raped and assaulted. While in some cases, the DA overcharges these cases, and in some cases they charge the wrong person, for the most part we would hope that they get the right people off the street to make us safer. It’s these minor kinds of “crime” that worry me, because there is no clear victim, no clear crime, and no clear threat to public safety. It seems an overreach by both police and prosecutor.

  9. E Roberts Musser

    To dgm: I think you are missing the point here, bc of your tendency to look through a defense filter only. My point was that if this idiot had not kidded around and essentially admitted to using the tools as weapons, perhaps the DA would not/could not have charged him for carrying the tools as “concealed weapons”. Had the defendant never made such a statement, then I would agree the DA would be overreaching. The defendant in this case was hoisted by his own foolish petards…

  10. David M. Greenwald

    Sorry I just disagree. That was a small portion of their case and he had already been arrested for having the weapons. The officer should have been able to figure out that a guy carrying a battery is probably using the implements as tools. (A) the guy was carrying a battery; (B) the officer admitted he knew he had a flat tire, (C) he admitted to not taking photos of the battery (which I think hurt his case as well).

  11. medwoman

    I think Ryan Kelly was on to something with ” he needs to stop smoking meth and not live at the Lincoln Apartments ….. And maybe not live in Woodland.

    While I agree wholeheartedly that stopping meth is the right thing to do, I also agree that this certainly sounds like police and prosecutor overreach. Does anyone think that the outcome would have been the same if I, a medium build, white, female, resident of North Star had been in my driveway, perhaps slightly inebriated, with the same items in my possession if the police were called to my neighborhood to investigate loud music at a party at my house? I suspect the officer would have been much more likely to offer me tips on how to fix my car, smile at my stupid and I’ll advised attempt at humor and wish me a good evening than to arrest me. As for the meth, I doubt he would even have asked.

    I think that it is easy for those of us who live in our lovely, relatively sheltered enclave of Davis to remember that not all communities and peoples are treated the same under the law although we like to believe it is so.

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