Defense Argues Reasonable Doubt in Attempted Murder of Girlfriend Prelim; Judge Disagrees, Finds Sufficient Evidence to Proceed to Trial

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By Michael Apfel

MODESTO, CA – In a case involving a gunshot wound of a victim hesitant to testify against her boyfriend, Judge Shawn Bessey here in a preliminary hearing in Stanislaus County Superior Court has found sufficient evidence for Luis Leyva to face numerous charges in a future trial.

Judge Bessey found there was sufficient evidence to proceed to trial regarding one count of felony attempted murder, one count of felony domestic violence, one count of felony witness intimidation, one count of felony attempting to prevent a witness testifying, one count of felony battery, and one count of felony possession of a firearm.

Leyva’s bail was to remain $3.4 million, and further proceedings were set to begin on Jan. 3, 2023.

Deputy District Attorney Fawn Smolak began the preliminary examination by calling Modesto Police Officer Garrett Trevethan to the witness stand.

On July 22, 2022 at approximately 11:40 p.m., the officer said he was dispatched to a residence in Modesto per a report of a woman who had been shot.

Officer Trevethan said he took a statement from one of the witnesses at the scene, who told her that she heard the alleged victim and a man loudly arguing with each other before the gunshot occurred.

The alleged victim referred to the man as Boo Boo. Another officer showed a picture of Leyva to the woman, and she identified him as Boo Boo, Officer Trevethan testified.

The next witness was Frank Inacio, a Modesto patrol sergeant that was on duty during the night in question. Sergeant Inacio was dispatched to the residence but was diverted after a helicopter began following a vehicle that left the house and was believed to belong to the perpetrator.

“A Stanislaus County Sheriff’s Department helicopter was following the vehicle, and officers were en route to try and catch up to the vehicle,” Inacio said. “The car was eventually stopped by other officers.”

Officer Ignacio said they interviewed the shooting victim, who was on the sidewalk with other officers who were providing first aid when Inacio arrived on the scene, and she told him that Boo Boo had shot her. The officer said the victim repeatedly stated Boo-Boo was her boyfriend.

“She said it was Boo Boo,” Inacio said. “I tried to see if she would tell me his real name because I thought that was a nickname, and she just kept saying it was Boo Boo. I asked her to describe him, and she said he was short and heavy. I asked for an age, and she said he was approximately 30.”

The victim appeared to be in pain during the interview, suffering from a bullet wound under her right breast and moaning as the officers tended to her, said the officer, adding a search warrant was later signed and granted for the accused’s house, leading to Leyva’s arrest.

On cross-examination, the defense attorney asked more questions about the interview with the victim. Inacio stated that, initially, the woman said she did not know who shot her.

No further evidence from the crime scene was collected from the sergeant. Though there was blood in the kitchen area, he could not definitively conclude where the shooting took place. Photos were taken of the blood, but a firearm was never recovered and taken into evidence, the officer said.

Modesto Detective Randy Bolinger was called to the stand by the prosecution. Bolinger said he monitored the accused’s jail calls.

“We have a system through the sheriff’s department that allows us to login to the system and listen to calls made by inmates at the Stanislaus County Jail,” Bolinger explained. “I was originally listening to jail calls related to his brother in another case, and then I came across these jail calls and began looking further into it.”

There were several calls made that Bolinger said he thought were relevant to this case, including a call made to the accused’s parents.

“He referred to his mom and dad, and he was referencing that he wanted them to talk to the victim in this case and make sure they were not going to come to court to testify,” said the detective, who noted a later call by Leyva in September to the victim.

The detective said, “In that call, he’s asking [the victim] if she had talked to an investigator, providing a story that it wasn’t him. They also talked about her writing out a statement stating that it was a tall Hispanic guy that shot her. She originally said she told them it was a white guy, and then when she told him she said it was a Hispanic guy, he said she was upset, saying she should have stuck to her original story that it was a white guy.”

And, said Det. Bollinger, Leyva called the victim, asking her to come to court and explain that he had not committed the shooting.

“He was making sure that she comes to court and wants her to stand up and say that it’s not him, so he can get out of custody,” Bolinger said.

The detective confronted the victim about the phone calls, 14 of which were made to the victim.

“I told her that I had been listening to the phone calls between her and Luis Leyva,” Bolinger said. “I basically confronted her and said she could get herself in trouble if she went to court and lied for him. I confronted her about why she was covering up for him, and she just made up excuses,” the detective testified.

The victim then told him she did not want to go to court and wanted to move on from the case entirely. At no point in this conversation did the victim say the accused did not shoot her, noted the detective, who added, however, the victim never told Bolinger the accused shot her.

The defense argued there was reasonable doubt surrounding premeditation.

“In regards to Count 1, attempted murder, I would argue that Your Honor should not hold Mr. Leyva to answer to that charge. There was no evidence I am aware of that was presented that showed he intended to kill [the victim],” said the defense.

The defense explained, “The only evidence that we have here is that she was shot under the right breast. There were numerous people that were in that household that were all brought out of the house that were spoken to. There was no evidence, other than the fact that there was an argument. There was just one shot. I just don’t think there was any evidence that an attempted murder took place. As well, I don’t believe there would be any premeditation to go along with a murder.”

Defense counsel conceded to other related charges, stating:

“I do think there is evidence on the other charges. I do think there is evidence that Mr. Leyva was identified, and there is evidence of testimony that [the victim] gave to the officer when she was on the sidewalk when they asked who shot her, so I don’t think we can contest that charge. (The prosecution has not) presented any evidence whatsoever to show that he was intending to kill her.”

The prosecution insisted Leyva was guilty, noting:

“The victim did sustain a gunshot wound to the chest. Presumably, if someone shoots someone in the chest, it’s circumstantial evidence that they intended to kill the person. Officer Inacio stated that the victim sustained a gunshot wound to the chest. There is also evidence of the medical records of where the victim sustained the injury, and that would be consistent with someone intending to shoot someone for the purpose of killing them.”

The defense concluded arguments, stating there were too many unknowns in the case to conclude an attempted murder had occurred.

“Just to add, Your Honor, that is a possible scenario, but we don’t know really anything of what happened in this case. There was no evidence presented whatsoever besides the fact that she was shot. There was arguing, but we don’t know who was the initiator of that argument, we don’t know if there was some sort of scuffle going on, we don’t know if there was possible self-defense. We don’t know any of that. I think a gunshot alone is not enough to hold him to attempted murder.”

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About The Author

Michael Apfel is a second year at USC majoring in Legal Studies and minoring in Sports Media Industries. He plans on law school after his undergraduate studies looking to work in social justice.

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