Flash From the Past: Twice Wrongly Accused, Twice Exonerated

Davis Police Car

This week on our video panel, we featured, among others, Bernita Toney.  She related the story of how she was wrongly accused of child endangerment by the Davis Police, who falsified police reports.  She would be acquitted in a jury trial.  Then, a few years later, she was accused of IHSS (In-Home Supportive Services) fraud and was facing multiple felonies.  The DA offered her a misdemeanor deal on the day of the trial, but she declined and they dropped the charges.

By request, we are re-running the February 26, 2007, story on Bernita Toney’s first ordeal.

Police Officer’s Falsified Report Leads to Drawn-Out Legal Ordeal for Local Resident

On March 7, 2005, police were called out to the Shasta Point Retirement Apartments in Davis on a report of children allegedly left unattended in a vehicle in the parking lot. According to the police report a witness saw two juveniles, ages five and two years old, in a vehicle alone at noon. Nearly an hour later, the witness reported that both juveniles were still in and about this vehicle unsupervised.

Sgt. David Delaini (who has since returned to Davis as Deputy Police Chief) arrived on the scene just after 1:00 pm and contacted the mother, Bernita Toney, of the juveniles. According to the police report, Ms. Toney told the police a woman who was with a dog had been asked to watch her children. The police would apparently talk to the wrong woman with a dog.

According to Ms. Toney, when Sgt. Delaini arrived at the scene she had kneeled down in the front seat on the passenger side. She stated that when Sgt. Delaini “looked at the kids his words were they look fine, don’t look like they have been harmed in any way. He went on… They look healthy, not endangered.”

Ms. Toney later wrote, “I did not leave the children unattended and the first officer on the scene did not find the children unattended.”

It was the next police officer on the scene, an Officer Docken, who wrote the report and eventually filed it with the DA when a warrant was issued for the arrest of Ms. Toney for failure to care for her children.

The Yolo County District Attorney’s office would charge Ms. Toney with two misdemeanor counts of a “violation of Section 273a(b) of the California Penal Code, Abusing or Endangering Health of a Child, in that [she] did willfully and unlawfully, under circumstances other than those likely to produce great bodily harm or death, cause or permit a child to suffer, and inflict thereon unjustifiable physical pain or mental suffering, and, having the care or custody of said child willfully cause and permit the person and health of said child to be injured, and did permit said child to be placed in a situation that its person and health was endangered.”

According to Officer Docken’s report, the “lady with the dog” was a Ms. Burke.

“Witness Burke’s statement: Burke went out the front of the building to walk her dog. She saw two little children in the car parked in front of the building. The rear passenger door was open. She heard crying. She approached the children. The older child shut the door. Burke tried to talk to the children, but they would not talk to her. She was outside for about a minute, before she returned to the lobby. She was in the lobby for about ten minutes before the police arrived…. Burke believes that the children’s mother is a single parent who probably cannot afford to hire someone to watch her children. Burke did not want to see the mother punished.”

This is a key statement as we will later see, for Ms. Burke would testify under oath that she never gave a statement to any officer, investigator, etc. Moreover, as Ms. Toney said, “This was not the person I left watching my children.”

The district attorney’s office offered Ms. Toney diversion and, under advice of her public defender, Ms. Toney, who believed herself innocent, decided to take diversion. However, in the course of filling out the paperwork, she was required to make statements that she believed cast her within the light of being guilty. She could not in good conscience fill out this paperwork. “Upon receipt of the packet, I found that the questions in the material were impossible to answer. Contents included questions like, where did you commit your crime? The logical option was to retroactively reject the District Attorney’s offer.” And so, against the advice of counsel, Ms. Toney rejected the diversion offer and opted to have her day in court in front of a jury.

In the meantime, Ms. Toney filed a complaint against the police for falsifying the police report: “Officer #29 wrote and submitted a police report (05-01347) that contained false information.”

She then added, “I feel this police report was purposely misconstrued to convince members of [the] DA’s office they would have probable cause for my arrest. Probable cause must be based on facts. The fact is, if the report would have been a reflection of the truth there would not [have been] probable cause for my arrest. She was informed that I had [a] witness. She did not give a good faith effort to contact my witness.”

On October 9, 2006, Sgt. Gina Anderson who headed the Professional Standards Unit (until her transfer to Citrus Heights Police Department), sent Ms. Toney a letter.  “I personally viewed your complaint with the Interim Chief of Police, who makes the final decision in all matters of this nature. Your complaint alleging dishonesty has been classified as UNFOUNDED. However, during the course of this investigation I found your criminal case was not sufficiently investigated and therefore a violation of our rules and regulations for which there was a finding of SUSTAINED.”

In fact, Ms. Burke would tell investigators for the public defender’s office and would later testify on the stand that the report was false.

According to the report, “Mrs. Burke was asked if she was talked to by an officer from Davis Police Department. Mrs. Burke replied she was not. Mrs. Burke stated she never talked to any officer about the incident.”

Ms. Burke was then read the statement in the police report from Officer Docken.  “Mrs. Burke stated the statement is a fabrication. Mrs. Burke stated the car door was not open, the children were not crying and she returned to her residence, not the lobby.”

Mrs. Burke then suggested that she “believes [front desk employee of Apartment complex who phoned the police in the first place] may have told the police officer this information. Mrs. Burke stated [she] assumed all of this and blew everything up.”

Deputy District Attorney Deanna Hayes reportedly wanted to drop the case but was told by her superiors that she had to get the conviction and therefore could not drop this case. We saw similar complaints against Ms. Hayes in the Khalid Berny (the Clarksburg farmer who was accused of letting his goats run at large) case where a resident was prosecuted for an offense that was relatively minor and threatened with long imprisonment.  This represents a pattern of complaints against the Yolo County District Attorney’s office and their refusal to stop prosecuting cases that lack strong evidentiary support.

Ms. Toney went to trial a few weeks ago and the jury took less than an hour and a half to acquit her of the misdemeanor charges. This is an example of a very unfortunate incident, highlighted not only by poor police work and a fabricated police report, but by the Yolo County District Attorney’s office’s overzealous prosecution of all offenses, regardless of their lack of sound basis and evidence. The Yolo County District Attorney’s office steadfastly refuses to drop any case and orders their deputy district attorneys to proceed in an attempt for a conviction – often against their better judgment.

According to many people in the system, the police report is a key determination of which cases go to trial and which ones do not. In this case, the falsified report led the Yolo County District Attorney’s office to file charges against Ms. Toney – and they would have succeeded, based on the recommendations of the public defender’s office which encouraged Ms. Toney to take diversion.

Others have informed me that, in other locales, the district attorney’s office is much more vigilant in overseeing the production of police reports and will frequently bounce them back to the police to fill in missing information and to get them right. However, in Yolo County, the district attorney’s office NEVER bounces them back to the police. This leads police to often cut corners in their investigation.

When they deal with lower income people and minorities such as Ms. Toney, they usually get away with it because they are rarely challenged, since the accused lack the financial resources to contest such charges.

The other concern here is how Sgt. Gina Anderson came up with an unfounded complaint when the witness herself denied she was ever contacted by Officer Docken. Did Sgt. Anderson contact this witness? And, if so, how did she arrive at the conclusion that this was unfounded?

What is perhaps more tragic is that this case went on for nearly two years. Because this situation was ongoing, Ms. Toney was unable to complete her certification to become a manicurist and her testing to get her realtor’s license. This gravely impacted her economic situation as a single mother – with two small children and two older children – who was working hard to make a better life for her family. The ongoing legal situation cost her two years’ worth of lost wages and income.

This case illustrates the continuing problems with both the Davis Police Department and the Yolo County District Attorney’s Office.

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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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