By Darling Gonzalez
RIVERSIDE, CA – Defense Attorney John Dolan said here in Riverside County Superior Court Thursday he has issues with certain evidence, including a conversation in jail between undercover officers and Jose Larin-Garcia, who is on trial for a quadruple murder.
The judge disagreed. And accused Dolan of delaying the trial.
Dolan’s concern was over an incident where undercover officers visited the jail where Garcia was held and had conversations with Garcia. Parts of the conversations were recorded and other parts had been only confirmed by the undercover officers’ statements.
Defense Attorney Dolan charged, “[The undercover officers] went in there, they listed incriminating statements…the law requires them to record any conversation when they are trying to do so and they didn’t record parts of the conversation. We’re just asking you (the judge) to exclude anything that’s not recorded rather than tell us something that officers said or heard but is not recorded.”
Dolan had requested this exclusion of information on the grounds of Penal Code section 859.5 that mandates only the recorded conversations during custodial interrogations are permitted.
Judge Anthony Villalobos, however, argued the conversation included was not a custodial interrogation and he would not allow the grounds under that statute.
“If this is not a custodial interrogation then 859.5 I don’t think applies. Therefore, I don’t see the grounds to exclude it under that statute,” Judge Villalobos said.
Dolan then explained that the issue should be briefed before the court made a determination because of the definition of custodial interrogation under section 859.5.
Judge Villalobos interrupted Dolan, “See counsel, this is where I am extremely frustrated because we went over this.”
He added, “I thought this was already litigated and we were going to proceed today. Now, I understand it’s the death penalty and you’re trying to do the best for your client and so this is brought up last minute. If we keep on doing this it is going to delay us, we’re not going to get done on time.”
Judge Villalobos then explained that there had been conversations about limiting the time for the defense’s cross-examination a day before and he had not done so, but these points had become too much.
He also noted the jury’s frustration over these long delays which would potentially affect their participation, and he was afraid that they would lose them.
Dolan stated the delay was not a tactic and then proceeded to request the transcript to cross-examine and impeach, and included that delaying for a week would not be too much of an ask.
Deputy District Attorney Samantha Paixao said that if they needed the transcript they could have done that beforehand and that there was no reason to delay the resumption of the trial that day.
Judge Villalobos stated, “I have had other cases where the defense prepares their own transcription. I don’t see why you had to wait for the People if you thought this was so urgent or so necessary. Why couldn’t you have done that on your own and why wasn’t that requested before?”
DDA Paixao also reminded the court that the recording had been there since Feb. 20, 2019, so the delay was unjustified.
Judge Villalobos concluded that the Penal Code section 859.5 would not apply because the defendant did not know who the undercover officers were, therefore not making the conversation a custodial interrogation.
With regard to the defense’s request for the transcription, he stated that it should have been done earlier and that the trial would be proceeding that day.