By Tiffany Yeh
The Penal Code section 995 motion filed by Deputy Public Defenders Dan Hutchinson and Peter Borruso, who are representing Lance Ornellas-Castro, was rejected by Judge Daniel Maguire. Lance Ornellas-Castro is one of two defendants charged with murder and other count enhancements in the death of Andrew Phaouthoum of Sacramento. Chief Assistant District Attorney Melinda Aiello and Deputy District Attorney Matt De Moura represent the prosecution.
On the January 21, 2016, charging document (the complaint), in Count Enhancement 1a charges Jorge Garcia with murder while Garcia “was engaged in or was an accomplice in the commission of, attempted commission of, and the immediate flight after committing or attempting to commit a felony violation of Section 211/212.5 of the California Penal Code, Robbery, within the meaning of Section 190.2(a)(17) of the California Penal Code, SPECIAL CIRCUMSTANCES FOR MURDER DURING THE COMMISSION OR ATTEMPTED COMMISSION OF Robbery.”
Judge Maguire denied the defense’s 995 motion and he found that there is sufficient evidence for a holding order. He stated that he did not reweigh the evidence that Judge Reed analyzed; he did read the preliminary hearing transcripts multiple times.
Mr. Hutchinson argued that there was no robbery, no discussion, and no attempt that a robbery occurred; there was no attempt, let alone a conspiracy to rob. There were two days for the prosecution to offer hearsay exceptions in their motions.
Hutchinson stated that he would have cross-examined Faith Carter if his client had been charged in the complaint with committing or attempting a robbery at the time.
If the prosecution did charge Ornellas-Castro with this additional charge, they (the prosecution) should have offered the defense a chance to cross-examine Faith Carter. But this offer was not made by the prosecution or by the judge during the preliminary hearing.
The defense expressed wanting to ask to reopen and bring Faith Carter back for cross-examination, which they would have done if they had known that the DA’s office was going to add a count of robbery or attempted robbery related to their client.
Currently, Ornellas-Castro is charged with robbery or conspiracy to commit a robbery, along with murder in the commission of a robbery.
Ms. Aiello argued that the prosecution did provide the requested evidence (the text message) finally. The prosecution had not received an Evidence Code section 115 objection regarding burden of proof, they had brought up the two witnesses, and that the they were not hiding behind a 115.
In addition, Mr. Hutchinson argued that Ornellas-Castro, Jorge Garcia, and later, the victim, being seated in the van is not evidence of a robbery (with Ornellas-Castro sitting in the backseat of the van after the victim came into the van.)
The defense further argued that both drug dealers and drug buyers carry guns in transactions, and that the presence of a gun alone does not mean that a robbery or planned robbery was occurring.
Ms. Aiello argued that the text messages regarding the “lick” and “dope” were properly admitted into evidence. She argued that the hearsay exception applies and that the texts are not hearsay.
Mr. Hutchinson asserted that he had made motions objecting throughout the preliminary hearing, but Judge David Reed stated only that he (Mr. Hutchinson) has made his record (referring to his objects). According to Hutchinson, the judge did not consider, for Faith Carter, Penal Code section 866 regarding offer of proof in the examination of witnesses during the preliminary hearing.
Mr. Hutchinson stated that he believed there was no hearsay exception and that the text messages in question did not directly tie Ornellas-Castro to a robbery. He argued that Judge Reed should have sustained the hearsay exemption for the text messages, that, clearly, it was not evidence. Mr. Hutchinson described Judge Reed’s ruling, given the judge’s earlier rulings in the preliminary hearing, as surprising.
He argued that only with Faith Carter is there probable cause for the prosecution to offer the text messages as evidence. No hearsay exceptions were offered by the prosecution at the time of the trial.
Judge Maguire stated that there was an evidentiary denial of a substantial right that had initially excluded Ornellas-Castro, then the ruling was changed. He argued that he would recognize the text messages as admissible but that he would not consider the texts in his decision on the 995 motion.
Judge Maguire stated that, for preliminary purposes, there was sufficient evidence for a holding order (his method included not reweighing Judge David Reed’s ruling) and that in a preliminary examination the standard is low.
The text messages were admitted over the counsel’s objection. It would not be enough for a conviction for Ornellas-Castro, the judge speculated.
Evidence Code section 1250 supports the texts as admissible evidence. The judge discussed the texts as the link in the case.