by Antoinnette Borbon
On Friday, four co-defendants were back in court with defense counsel to find out whether or not the judge will allow a fourth trial.
The four young Hispanic males are charged with great bodily injury and robbery to benefit the criminal street gang, “Norteños.”
In what has taken a period of longer than a year and three trials, jury members have only been able to reach a verdict on two charges against defendant Juan Fuentes, for stealing a bike and evading police.
On the gang enhancements, jurors in the last trial found all gang enhancements against the four young men to be true.
But it raised legal questions because, according to Penal Code 186.20 et seq., a gang enhancement should accompany another charge.
It was unclear whether or not jurors understood the gang laws/enhancements.
One juror told the Vanguard that he felt there was not enough evidence to be sure the four were positively identified as the assailants.
Defense Attorney Keith Staten filed a motion for dismissal but its content is unknown to the Vanguard.
It is alleged that the four defendants attacked a Woodland man while he and girlfriend were at the 7-Eleven off of Court Street.
Scott Nichols testified to the fight starting over one of the defendants asking for a dollar. He said he heard someone yell a gang slur but did not see the face.
Nichols said that, after he declined to give the young male a dollar, an argument erupted.
He testified that soon afterwards a fight ensued between him and about five or six Hispanic males. But, he stated, “I couldn’t see, I was busy throwing punches.” Nichols testified that he could not see who took his bike or groceries.
Nichols’ girlfriend, Donna Beatty, testified that she remembered a mullet haircut on one of the men, but she was also unclear about recognizing any faces.
However, on the scene, police wrote in their report that Beatty and Nichols identified the four men.
Nichols and Beatty claimed that officers put words in their mouth.
Beatty admitted to being under the influence of alcohol that night.
Both she and Nichols were reluctant to testify during two trials. Prosecutor Johnson asked them if they were afraid of any retaliation or other consequences, to which they replied, “No.”
Nichols suffered a bloody nose and dislocated shoulder.
During the third trial, Jeff Raven, defense attorney for Jose Jimenez, demonstrated for jurors how the incident may have happened.
Swinging punches in the air as he turned to look as if he were grabbing the items off the ground, Raven had jurors watching intently.
Raven also used the video to show jurors his client walking into the 7-Eleven that night, and moments later looking out the window to see what was going on outside. Jimenez was seen running out toward the parking lot but returned in less than two minutes.
In his powerfully animated closing, Raven focused on that store video. He also pointed out a woman who stood outside watching the whole thing happen.
The woman was not interviewed that night.
Mr. Raven stopped the video to show jurors how Jimenez had no blood on his shirt.
He turned jurors’ attention to the time frame. The whole incident took less than two minutes, asserted Raven.
He pointed out that Jimenez did not appear disheveled and his clothing was still intact and clean.
He said, “Look at his demeanor. He shrugs his shoulders as if to say to his friend, I don’t know what just happened.” Raven said, “This is not the demeanor of a person who just punched, kicked and stole someone’s groceries, as the prosecution says.”
Raven contended that his client, Jimenez, had no idea why the police approached on him that night.
Raven pleaded with jurors not to judge his client by his tattoos, but rather exercise the same presumption of innocence they would give to a school teacher or the like.
Defense Attorney Keith Staten’s closing focused on the stolen “Cheetos, Pepsi,” none of which were tested for DNA or taken into evidence.
He stated, “Where is the bag of Cheetos?” Staten’s closing focused on credibility of witnesses, gang expert testimony and the inconsistencies in written reports.
But at the end of the third trial, another jury panel hung 10 to 2, 10 for guilty.
Prosecutor Robin Johnson expressed a strong belief that a conviction is likely in a fourth trial, since it was so close.
Judge David Rosenberg had reservations. But he allowed counsel to set a fourth trial conference and, possibly, a fourth trial.
On Friday, another court date was set for January 15, when the motion for dismissal will be heard.
If a fourth trial goes forward, it is proposed to begin on January 26, 2015.