Eric Lovett in February of 2015 was facing charges for being an accessory to attempted murder for the November 2014 shooting by Michael Reyes, who has long since been convicted and sentenced to life in that shooting.
However, as Mr. Lovett was sitting in his preliminary hearing, law enforcement officers present in the court alleged that he made slicing motions with his finger across his throat as the victim testified. The new allegations resulted ultimately in Mr. Lovett’s case being severed from the original trial (which resulted in convictions for all three co-defendants).
After a lengthy trial, the jury finally reached a decision last week that probably stunned everyone involved. The jury hung 8-4 for acquittal on the main charge of accessory to murder after the fact, but convicted Mr. Lovett on the charge of dissuading a witness and committing that felony for the benefit of a criminal street gang. The DA subsequently dismissed the accessory to commit attempted murder charge.
In the DA’s press release, they explain that Mr. Lovett is a three striker, having been convicted of committing two prior strike offenses. “In 2004 Lovett was convicted of Assault with a Deadly Weapon in Yolo County and in 2010 he was convicted of Criminal Street Gang Activity in San Joaquin County. He also has served five prior prison sentences.”
There is a hearing schedule for Friday when Judge Dan Maguire will hear evidence on the prior strikes and prior prison offenses. If convicted of these additional case enhancements, Mr. Lovett will face up to 45 years-to-life in state prison.
On the second day of the preliminary hearing, February 19, 2015, the complaining witness, Ernie Sotelo, testified for the prosecution. The next day of the preliminary hearing, on March 3, 2014, Officer Anthony Herrera testified that on February 19, 2015, he had witnessed Mr. Lovett make gestures toward Ernie Sotelo as Mr. Sotelo testified, and the officer interpreted the gestures as threatening.
Officer Herrera claimed he saw Mr. Lovett “do it over and over again.” He also testified that Deputy Gary Galvan told him that he, Dep. Galvan, saw Mr. Lovett “do it several times,” “the same thing, the same motion with the finger.”
Deputy Galvan reportedly saw Mr. Lovett make this motion “five or six more times, doing it very slow.”
Officer Herrera said, “[Dep. Galvan] said at first before Ernie Sotelo came in to testify that [Lovett] was jovial, laughing and joking, but as soon as Ernie Sotelo came up here to testify, he said that that’s when he said he paid particular attention, said that he was – looked to be very interested in looking at Sotelo, and would like grit his jaw to where you could like see the muscles clenching in his face. He said he wasn’t joking and jovial up to that point, after that point, excuse me, when he was testifying.”
The jury verdict is rather stunning in that the jury did not find sufficient evidence to sustain the main charge that held Mr. Lovett in custody to begin with, but found enough to convict on a charge that three independent observers were underwhelmed with.
In March, when Judge Maguire agreed to quash a third subpoena for courtroom staff, he noted in his ruling that the existence of courtroom video was crucial. He said that what the video shows is “subject to interpretation.” He even acknowledged that the first time he watched the video, he didn’t see anything.
Rod Beede, a counsel for a co-defendant, at a trial setting conference in July 2015 said that it “would be hotly contested what, if anything, Mr. Lovett did when the witnesses (sic) was on the stand. My entire staff and I looked at the tape two or three times and it was confusing at best.”
Judge Rosenberg was similarly equivocal on the content of the video.
“I saw Mr. Lovett make certain movements with his hand, which frankly surprised the Court, took me aback,” the judge stated.
He held Mr. Lovett to answer to the charges on December 14, 2015, but reasoned that a jury “could readily determine that Mr. Lovett was just fidgeting, but I also believe that a jury could determine that he was making motions like a slashing of a neck to intimidate a witness that was on the stand.”
However, a jury of 12 apparently all agreed that what the video showed apparently was sufficient to convict Mr. Lovett of the crime of dissuading a witness even though the victim, when testifying in the trial, noted that he never saw the hand gestures and if he had he would have simply flipped Mr. Lovett the bird and continued with his testimony.
Instead of no harm, no foul, here, we have Mr. Lovett facing 45 years in prison for an apparent crime that underwhelmed two judges and was unseen by anyone other than a police officer testifying in the court trial.
With the conviction, the decision by various judges to exclude testimony of Judge Paul Richardson, Deputy DA Amanda Zambor and Court Reporter Abby Waller-Reisig (wife of DA Jeff Reisig) will undoubtedly become an issue for the appellate court.
Judge Maguire ruled that Ms. Reisig, according to her declarations, had nothing to offer as to what happened, as she claimed not to have seen anything.
He offered the “dog that didn’t bark evidence” because she (Ms. Reisig) doesn’t remember seeing anything that is potentially probative. He said that that can be evidence, but he has no reason to think that the dog wouldn’t bark. He said the absence of the evidence isn’t relevant, stating there was nothing to take notice of.
The defense was frustrated at the unwillingness of the court to allow three credible witnesses to testify that they apparently saw nothing when the defendant’s counsel maintained a defense that nothing occurred.
The other interesting legal question will be whether Judge Maguire will impose the automatic life sentence of a third strike in a case where he agreed that the evidence was a matter of interpretation and a case where the victim did not even notice the alleged crime against him.
Even a second strike conviction could see Mr. Lovett put in prison for a sizable period of time, but it would be far less than 45 years to life.
—David M. Greenwald reporting