By Nikki Suzani
SACRAMENTO – Judge Tami Bogert decided that a hot car hood was sufficient evidence to bring stolen car-related and identify theft charges to trial here in Sacramento County Superior Court last week, even though defendant Ruben Gomez was never seen driving the car.
In December of last year, Officer Mitchell Williams was patrolling a Walgreens parking lot when, after running the plate of a Honda Prelude, he found that the license plate was registered to a Mitsubishi, not the Honda.
Suspicious, he walked on foot to the vehicle and found that the ignition was damaged, with exposed wires, and that the vehicle had been reported stolen in Arizona. And, after checking to see that the hood was hot—which he believed meant the driver was nearby—he called in additional back-up to patrol the area.
At this point, Gomez exited the Walgreens, stood outside, and then re-entered the store. He came back out minutes later with his wife. As soon as he sat in the driver’s seat of the car, Williams and the other officer on site arrested him for theft and, after searching his pockets and finding a bank and EBT card not registered to Gomez, added a charge for identity theft.
At the preliminary hearing, legal intern Rawan Abuelrich, supervised by Deputy District Attorney Tate Davis, attempted to prove that there was sufficient evidence to bring the three charges to a jury trial: Penal Code section 10851, driving a vehicle without the owner’s consent; Penal Code section 496(d)(a), receiving a stolen vehicle; and Penal Code section 530.5(c)(1), identity theft.
She started by interviewing Williams who, along with the facts stated above, mentioned that the officer on site had observed damage to the glove box and ignition area as well, and had located the original license plate of the vehicle in the back. He added that when Gomez was arrested, Gomez had protested, saying that he had bought the vehicle from a man named Craig in a nearby Walmart parking lot.
During the first cross-examination period, Assistant Public Defender Eliza Hook attempted to hammer in three key points: that there was no proof Gomez had driven the vehicle, that there was no proof Gomez had originally stolen the vehicle, and there was no evidence Gomez had actually used the bank or EBT card to commit identity theft.
Williams testified that it was true that he had never observed Gomez driving, and that Gomez had been with his significant other, Jacqueline Gomez, at the time. He added that he had not gone to the Walmart to verify whether this “Craig” had stolen the car himself and sold it to Gomez, but stated that the plate in the back seat meant that it was likely Gomez had been the one to steal it.
Finally, the officer testified that he had not asked any workers in the Walgreens whether Gomez had used either the bank or EBT card, meaning there was no evidence the identity theft had actually occurred.
During re-direct, Abuelrich questioned Williams about why he believed the car had to have been driven. He stated that the hood of the car was hot, something that only happens when a car has been driven recently, and that Ms. Gomez, Ruben’s wife, had been hysterical during the arrest and had told police she didn’t know where the car was from, meaning that it was unlikely she had driven it.
Finally, she asked Williams whether the EBT card belonged to Gomez and Williams clarified that it was registered to a man of the last name of Coleman, but added that he had not contacted Coleman to see whether the card had been used.
Hook then re-directed again, getting Williams to clarify that all Ms. Gomez had said was that she didn’t know the vehicle was stolen, not that she didn’t know where it came from, meaning it was still possible for Gomez to have bought it in the Walmart parking lot. She also got Williams to admit again that he didn’t know whether the bank or EBT card had been used, that none of the officers had seen Gomez actually drive the car, and that there was no evidence at the scene of the actual crime that pointed to Gomez being the one to steal the car—as Williams had not investigated the scene where the car was stolen from.
Before the judge made the decision, Hook summarized her main point, explaining that Count 1, the violation of PC section 10851, should not be taken to trial. She made it clear that no law enforcement officer or witness had actually seen Gomez driving the car, and that since Ms. Gomez was with him there was no reason to believe that the hood being hot meant that Gomez had been the driver.
Hook did not contest the identity theft charge at this point of the preliminary hearing, even though she had elicited testimony from Williams that he did not know whether the cards had been used. Hook also did not contest whether Gomez had specifically been the person to steal the car, even though Williams had not checked the Walmart parking lot to see if this other man “Craig” was the real suspect.
At this point, Abuelrich pointed out that even if the car had been bought in a Walmart parking lot, the fact that it ended up at Walgreens means that it must have been driven, at the very least. She again added that the hood being hot was another indication of this.
Finally, in response to the idea that Ms. Gomez had been the one driving the car, she pointed out that, although the car had not yet been put in drive, Gomez had been in the driver’s seat when the law enforcement officials arrested him, meaning it was far more likely that he was the driver.
In the ruling, Bogert said that the evidence presented was sufficient for the purpose of the hearing, which she clarified had a pretty low evidentiary burden, and pointed out that logical inferences could be drawn that Gomez had driven the car.
This, she said, was supplemented by the hood being hot and the fact that Gomez was found in the driver’s seat of the car. She did not address the identity theft claims or the claims that there was no proof Gomez had stolen the car himself, as Hook did not bring that up in her final motion.
The jury trial for Gomez’s case has been set for Oct. 29, at 8:45 a.m. in Dept. 9.
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