Immunity of Witness Granted, Compelled to Testify in Murder Trial

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By Gloria Ho

On the morning of March 1, 2017, testimony continued in the case of the People v. Lance Richard Ornellas-Castro with Judge David W. Reed presiding. Deputy Public Defender Daniel Hutchinson represents the defendant. Chief Assistant Deputy District Attorney Melinda Aiello and Deputy District Attorney Matthew De Moura are representing the People. The defendant is accused of murder in the shooting death of Andrew Phaouthoum on December 11, 2015. The co-defendant in the case, Jorge Garcia, has accepted a plea agreement and has provided testimony.

Before the 15 jurors (12 plus alternates) entered the courtroom, the attorneys moved for admission of the exhibits into evidence for the jury to review. After going through the exhibits, Attorney James Granucci, who represents witness “FC,” asked Judge Reed if he could have an immunity agreement for his client. The People were hesitant to do so before her testimony because they were not sure if any questions would invoke her 5th Amendment rights.

“Is there harm to have her sign the immunity form before so that it doesn’t implicate her 5th Amendment rights?” Judge Reed asked the People and the defense. Judge Reed said that he wants to avoid compromising the People’s witness in front of the jury. After some hesitation, Judge Reed told Mr. Granucci to talk to FC to sign the immunity form after she agrees to immunity. FC and Mr. Granucci then left and the jury entered the courtroom.

Deputy PD Hutchinson began to continue the cross-examination of another witness, Deputy Brian Young, who has been a detective with the Yolo County Sheriff’s Office for 13 years. Detective Young testified that when the victim, Andrew Phaouthoum, was identified, he did not receive information that Mr. Phaouthoum was involved in any type of transaction until he arrested Jorge Garcia, the accused co-conspirator in the case. Deputy Young had gotten information that there was a drug sale, but he did not know there was robbery involved.

“It could have been a drug deal gone bad?” Mr. Hutchinson asked the People’s witness.

“Correct,” Det. Young answered. On December 14, 2015, “RB” and Jorge Garcia’s phones were submitted to high tech experts to have them analyzed. In Mr. Garcia’s phone, they found a contact named “Joker” that they thought was a second suspect in the case. In RB’s phone, they found an incoming text message from Jorge Garcia on December 4, 2015, saying “I need to come up on a lick. I don’t have enough doe to get by until next Friday.” The People’s witness explained that a “lick” meant robbery.

“He said that he wanted to set somebody up,” Detective Young testified as he recalled his interview with Mr. Garcia.

On December 17, 2015, Det. Young sent some deputies to Rio Vista High School to talk to FC, who at the time was a friend of Mr. Garcia’s. Detective Young admitted that he read the deputy’s report on the interview with FC and hadn’t gotten a chance to listen to the audio yet.

“You don’t have an hour and a half to sit down and listen [to the interview]? You have to rely on the officer accurately summarizing the report?” the defense questioned.

“Yes,” Detective Young testified before continuing, “I still have not reviewed Det. [Thomas] Hayes’ audio recording.”

“Because Jorge Garcia invoked his [Miranda] rights, you couldn’t ask him what a lick meant?” Deputy PD Hutchinson asked.

“Right,” Det. Young answered. The questions went on to gang-related questions. Mr. Ornellas-Castro allegedly told Det. Young that he was part of a gang called “CSN,” which the People have said are the Central Stockton Norteño.

“Usually [Norteños and Sureños] are rivals?” Mr. Hutchinson asked.

“Typically,” Det. Young responded.

“Based on the tattoos and him wearing red?” Deputy PD Hutchinson inquired.

“Yes,” Det. Young answered.

“You believed he was a gangbanger based on his tattoos and how he looked before you talked to him?” the defense questioned.

“Yes,” the People’s witness testified and continued, “Little pieces of information in the investigation gave me suspicions.”

Next, the People called FC to the stand. She was a friend Mr. Garcia had contacted after the victim was shot to death and his body was disposed of on December 11, 2015. FC is 18 years old and currently works as a waitress at a café. The People first confirmed that the phone number that FC presently has is the same as the one back in November and December of 2015.

When asked if the People’s witness knew the codefendant in the case, FC responded, “We were friends. But I cut ties with him…because he put me in this situation and I have to be here.” FC described that she stopped being friends with Mr. Garcia when the murder case began.

Prior to the death of Andrew Phaouthoum, FC and Mr. Garcia hung out weekly. She testified that she didn’t know the defendant personally but she has seen Mr. Ornellas-Castro before with Mr. Garcia. FC said that she met the Garcia through a friend, RB, with whom she is still friends but they don’t talk or hang out as much anymore since the investigations began.

Deputy DA De Moura questioned what the codefendant and the People’s witness did when they hung out. She answered, “Drive around. Smoke weed. Hang out at his house.” Ms. Carter testified that they talked about his day and smoking marijuana for most part.

“How often did you guys have those conversations [about licks]?” Mr. De Moura asked.

“I can’t tell you…it was random. He brought it up,” she responded. Deputy DA De Moura asked several questions about what “licks” meant to the witness, how she interprets the word, and what the ways to steal are, such as involving threats, force, or a weapon. FC testified that she did not know the victim and that Mr. Garcia never told her about the “Asian individual.”

“Now after Andrew was killed, do you remember meeting Jorge [on December 14, 2015]?” the People asked. FC gave a positive answer and explained that a friend of hers drove her to Mr. Garcia’s house because he asked to see her as soon as possible by text message. She said she didn’t know what she was going over to his house for, but she was suspicious something was going on because he was short in text messages. When she and her friend arrived at the house, they ended up smoking marijuana together with Mr. Garcia.

“He said that he felt that people were after him or something bad happened. That’s all I can remember. I just remember him being really paranoid,” FC testified, as she described that he was constantly looking around and saying weird things. “He just said something bad happened, that there’s blood stains in the van, that he was with Lance [when it happened], and he needed to leave and felt people were after him,” she further explained, after reading a report offered by Deputy DA De Moura.

The defense began a cross-examination of the People’s witness by asking if she always needed a report to remember something, because it appeared that she didn’t remember except that something bad happened. Mr. Hutchinson pointed out that she was only able to remember the “Asian individual” after she read the report of what Jorge Garcia had told her.

“You testified [in another hearing] that you remember 80% from memory and 20% from the report,” Mr. Hutchinson commented. He also added that he saw when passing by that Deputy Mike Glaser came up to FC on a separate day and showed her his report in the hallway during a 20-minute break. The defense mentioned that Deputy DA De Moura did the same thing, and offered her a report in the courtroom when she didn’t ask for it to refresh her memory. Ms. Carter was shown, in total, two reports when she did not request for her memory to be refreshed. Deputy PD Hutchinson asked whether Ms. Carter thought she was supposed to read and testify what the People wanted her to say, and the People objected to the question.

“He told me they picked up this guy, and was going to set him up and rob him…” Ms. Carter said before the afternoon break.


Afternoon Session

By Ryan Gonzales

Following the afternoon break, Deputy Public Defender Daniel Hutchinson continued the cross-examination of FC and questioned the validity of her statements as written in Detective Thomas Hayes’ report on December 17, 2015.

FC displayed a great deal of forgetfulness throughout Mr. Hutchinson’s examination and, on multiple questions, she had no recollection of events that occurred only months prior.

The witness’ memory impacted the defense’s examination and created confusion with one of their major concerns of the investigation, which was her understanding of Jorge Garcia’s statement of “hit a lick” and Det. Hayes’ interpretation.

When asked to recall what Jorge Garcia meant by “hit a lick,” FC testified that it meant to rob someone and used an example of going into a person’s house and taking their personal belongings. However, she only testified to this after looking over the investigator’s transcription of the interview.

But Mr. Hutchinson then asked, if an officer explained the legal difference between a theft or burglary and a robbery, or if she knew the difference between these terms. FC responded no. A theft or larceny is simply the unauthorized taking of someone else’s property. Robbery is accomplishing that through force or fear, therefore requiring the presence of the victim. Burglary is the unlawful entry into a structure with the intent to commit a crime, any crime.

After multiple objections due to argumentative questions, FC testified that she does not remember anything revealed at the January preliminary hearing of this year, only that Mr. Garcia told her that he was going to set up some Asian. However, when Mr. Hutchinson stated that Mr. Garcia never told her that he was going to rob someone, FC agreed with the statement.

The prosecution then brought forward Detective Thomas Hayes of the Yolo County Sheriff’s Office, one of the officers that conducted the interview of FC on December 17, 2015.

When the prosecution inquired about the detective’s definition or use of the word “lick,” Det. Hayes testified that he used the word robbery for the definition because FC was using it throughout the interview. However, when asked why he never offered to correct FC’s understanding of a robbery, since her example described a burglary, the detective stated, “When you keep correcting someone, it shuts them down.”

However, in a 30-second excerpt of the interview that was provided by the defense, Detective Hayes was heard suggesting the term robbery, as FC described what “hit a lick” means. Thus, Mr. Hutchinson asked who suggested the term robbery, and Det. Hayes responded, “At that point I did, because she was using it.”

Despite this testimony, Detective Hayes acknowledged that he understood what FC described was a burglary. Furthermore, Hayes testified that he knew the crime was possibly committed under the notion of a robbery.

Thus, Mr. Hutchinson asked why the detective did not tell Detective Young, the investigating officer of the case, that FC described a burglary not a robbery, to which he testified that there were other parts of the conversation where she uses the word robbery to describe lick.

Mr. Hutchinson responded by asking if the detective knew that FC would use the transcripts in future testimonies to refresh her memory, to which he responded yes.

“So why did you not write burglary instead of robbery?” demanded Mr. Hutchinson.

But the detective maintained his testimony that FC suggested the definition, and Mr. Hutchinson agitatedly stated, “Do you want to hear it [clip] again?”

However, the objection was sustained due to the question being argumentative.

Although the excerpt showed Detective Hayes suggesting the use of robbery to describe lick, he told the court that, throughout the interview, FC gave evidence to confirm the definition.

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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