The case of Eric Lovett was already epic in Yolo County, with secondary charges of dissuading a witness arising out of purported hand gestures made in court that several jurors called ambiguous at best, combined with the defense’s unsuccessful efforts to call percipient witnesses – the sitting judge and court staff including the wife of the Yolo County District Attorney – leading to a 2016 conviction on the secondary charge but a hung jury on the original charge of accessory to felony shooting.
On June 30, 2016, a unanimous California Supreme Court in People v. Sanchez changed the way hearsay evidence could be admitted concerning a defendant’s gang membership.
The question before the court on Friday was whether the new hearsay rules would invalidate decisions to allow certain gang expert testimony during the trial. The defense made a motion for a mistrial while the prosecuting attorney acknowledged that some testimony, which was admissible under the law at the time of the trial, would now have to be stricken under the Sanchez decision.
The prosecution countered that this was in fact harmless error and that there was lots of other evidence of gang membership that was admissible. This included evidence of gang tattoos and photos. Deputy DA Robin Johnson also noted that Sanchez was not the law at the time and therefore the People did not err.
However, Deputy Public Defender Martha Sequeira countered that the “facts of the case are so intertwined, harmless error cannot be made.”
The evidence, she argued, was contained within testimony that is now inappropriate hearsay and without the gang expert’s testimony, there is no evidence left of gang involvement.
In her motion, she argued, “The court admitted case-specific, testimonial hearsay without giving Mr. Lovett an opportunity to confront and cross-examine the out-of-court declarants. Although the state of the law had permitted it, the Supreme Court’s recent decision in People v. Sanchez held that doing so constitutes error of Constitutional proportion. Since the error is not harmless beyond a reasonable doubt, the court should order a mistrial and order a new trial.”
Judge Dan Maguire methodically laid out his ruling. He made it clear that Deputy DA Robin Johnson acted in accordance with the law at the time. The defense had made a motion to exclude certain evidence and, under existing evidence law, the judge had denied the motion and the evidence went forward.
He identified four critical incidents about which testimony was given and of which the gang expert had no direct knowledge and was testifying, relying simply on notes at the time. This included a 2003 incident, a 2009 incident, a 2013 incident and a 2014 incident.
The judge went into a harmless error analysis and once again acknowledged that this was “a close case” that could have gone either way. The video evidence of the finger gesture could have been fidgeting or it could have been more ominous.
The jury had to make a judgment call and they would have wanted to know the past. Based on that, he found grounds to think that this evidence would have been a factor in the jury’s decision, and granted the motion for the mistrial.
The original charge of accessory to the shooting that started this trial cannot be brought back. There may be an effort to resolve the case now or it could go to trial again in late August.
This ruling is the latest twist in what has been a long and eventful trial.
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).
The lengthy trial brought a decision that stunned most people 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 explained 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.”
Based on the conviction and his past crimes, Mr. Lovett faced 45 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, which was on March 3, 2015, 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’s conviction was particularly stunning because several independent observers having seen the video believed the evidence that it was a threat was questionable at best.
In March 2016, 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.”
The case was always going to be interesting because there were separate decisions by a variety of judges to exclude testimony of Judge Paul Richardson, Deputy DA Amanda Zambor and Court Reporter Abby Waller-Reisig (wife of DA Jeff Reisig).
In his ruling last year, 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.
On June 30, the California Supreme Court decided People v. Sanchez. The unanimous decision held: “[t]hat the case-specific statements related by the prosecution expert concerning defendant’s gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt.”
—David M. Greenwald reporting