Judge David Rosenberg denied Deputy District Attorney Robin Johnson’s motion in limine to use the prior gang-related convictions of defendants Jose Jimenez and Justin Gonzales in the new trial.
Although the DDA fought strong to be able to use them to show jurors the two were active gang members, her efforts were fruitless.
Instead, Defense Attorneys Jeff Raven and Keith Staten would argue that gang experts can testify to any theory of this crime, involving the two defendants, being tied to furthering or promoting criminal street gang activity or the two being active members.
DDA Johnson pled with Judge Rosenberg to at least have the defense attorneys admit that their clients were active members, but Rosenberg still denied her motion.
Next to take the stand was Officer Chris Lara.
Officer Lara testified to being called to a disturbance at the 7-Eleven store on Court St. He said upon his arrival he found a man who was clutching his arm and appeared to have blood on his face.
He said Nichols, the young man, told him that he and his girlfriend rode bikes down to the store. Lara said Nichols told him one of the males asked his girlfriend for a dollar.
Lara stated, “Nichols told him one called them tweakers and scrapa and said it was about 6 or 7 kids who approached him and it was the one in the black shirt asking for the dollar.”
Lara went on to state he took both Nichols and his girlfriend to identify their perpetrators. He said both Nichols and his gal told him and Officer Lear Luttrell that the kids they were taken to identify in the field were the ones involved.
Lara said that Nichols said he wanted to press charges.
In the cross by Attorney Keith Staten, representing Mr. Gonzales, he asked Lara if he had taken a written admonition before identifying the boys. “No, I did not.” replied Officer. Lara.
Staten then asked about what Nichols had told him he purchased at the store. Lara responded with, “I believe he said he bought a burrito sandwich, Cheetos and a Pepsi.”
“But that wasn’t on the receipt, correct?” asked Staten. “No,” answered Lara.
Staten, then digging deeper, asked, “So did you find the Cheetos? Are they in evidence?”
“Um…I didn’t book them but yes, I believe they are in evidence.”
Attorney Jeff Raven, representing Jose Jimenez, began questioning the officer about the protocol of audio and video recording. Officer Lara went through the procedure of when and how a car cam recorder operates. He said it can be activated manually or accidentally. But he told Raven it is mostly up to the officer to turn it on and/or turn it off.
Raven asked if Lara had turned it on that night, and Lara said he had not.
Raven then asked Lara about the field identifications. Lara stated that he took Nichols and his girlfriend, Donna Beatty, to three different locations. He said he told them the kids may or may not be the perpetrators.
Lara said he drove to each location, first with Nichols and then with Beatty, and they both identified the same kids. But he said that it was dark and the identification was through the police car window.
Lara said he could not recall who shined a light on the kids to be identified by the victims.
He said another officer was present and he couldn’t recall but thinks it could have been Officer Luttrell.
Attorney Bob Spangler, for defendant Juan Fuentes, began with, “Ok, it’s time for me to go to school.” He asked Lara just exactly how the camera system worked again.
Lara answered, “The car cam can go on over a couple different things, it can be turned on or accidentally go on if its bumped.”
Spangler asked what the officers are taught in training on audio and video recordings. Lara stated that it is suggested to use the recorders but it is still up to the officer.
“So did you take any recordings that night?” asked Spangler. “No,” answered Lara.
“And there are different dates or times on your written reports – were there more than one? Or just one?” Lara replied, “Only one, it was just different times I wrote.”
Ava Landers, defense for Anthony Ozuna, asked Lara if Nichols ever described the perpetrators having tattoos or if he and his girlfriend saw any tattoos on the kid who lifted his shirt up stating, “Should we just shoot this n-?” Lara answered no.
Landers asked if he had his radio on and if Nichols could hear dispatching say over the radio that they caught the boys. Lara stated the radio was turned down and we usually do that so people can’t hear.
In re-cross, Mr. Raven asked Lara if he had ever told Nichols or Beatty they caught the kids. Lara stated, “No, I told them they may or may not be the kids.” But he asserted no admonishment was ever signed.
Last witness for the day was the 7-Eleven store clerk.
Mr. Pokeral stated he knew some of the kids as good customers, friendly, he said.
He said the night in June was an eventful night. Pokeral says the couple, Nichols and Beatty, came and purchased a few items that he cannot recall and walked out. He stated,”It was a long time ago but I remember only the three kids buying beer and then saw a fight going on outside, a lot of men to one man but it was too dark to see.”
He said he never told Detective Ney that he heard anyone say they were going to fight or anything like it. Pokeral said he also never said he saw tattoos because it was too dark out.
He stated the fight lasted only minutes and asserted that Raven’s client Jimenez ran outside but he never saw where Jimenez ran because he was concentrating on the fight.
Pokeral said he had only been in the country for two months and did not know how to call police.
Raven asked about the lighting outside the store. Pokeral said it was dim.
Staten asked him if he could recall the items purchased by Nichols but he said it was too long ago.