Judge Changes Charge after Noting Inconsistent Victim Testimony

By Amy Berberyan, Maria Pia Matos, and Belen Avelar

MODESTO, CA – Stanislaus County Superior Court Judge Dawna Reeves Friday reduced the charges of the accused at his preliminary hearing after an inconsistency in the alleged victim’s testimony.

The accused was originally facing assault with a deadly weapon charges for an incident that occurred on Sept. 5, 2022, in Oakdale, California. He also had a misdemeanor charge for allegedly resisting arrest and possessing drug paraphernalia.

The first witness called was the accused’s victim. She was homeless at the time and described the accused as an “acquaintance” prior to the incident after meeting him on the streets.

On Sept. 5, she had been sleeping under the water tower in Oakdale. She said, “I was sleeping and woke up to [the accused] screaming.” She said the accused walked away after she woke, and she got up to see what was wrong. After this, he came back and hit her with a can of green beans.

Deputy District Attorney Sara Sousa asked about the state of the can after the assault, and the victim said, “It had my blood on it. It was dented,” claiming she was hit on the back of the head with the can but “didn’t go to the hospital because they said they were going to superglue [her] head.”

When asked if she fought back, the witness said she “couldn’t because [she] fell down.” And, when asked about the wound she sustained on the back of her head, the witness said it “looked like an eyeball.”

Assistant Public Defender Clifford Tong confirmed through the victim that the accused was standing about four to six feet away, and had woken her up screaming “Where’s my phone?”

After being woken, the witness said she was confused because she did not know anything about his phone. After that, she said the accused “threw one can of beans at me and it missed me.” He walked around 16 to 20 feet away from her, but came back running.

“He knocked me down,” the witness said, and added his face was “bright red when he threw the can.”

The witness said she was hit five times, every time with the can. When questioned if this was the same can he had thrown and missed, she said, “Yeah, as a matter of fact I think he picked it back up.”

When questioned about what she had told officers concerning how she was struck by the can, the witness said she no longer remembered.

The second witness called was sworn peace officer Michael Jericoff, who testified when he first saw the victim, she appeared healthy. He then proceeded to take photos of the injury.

Officer Jericoff said that the accused’s victim did not describe the number of cans, nor did she have any injuries on her face, only on the back of her head.

He added the victim told him the accused “had grabbed an unopened can of food and thrown it at her head, causing that laceration.” This contradicted the victim’s earlier statement about the accused having hit her multiple times with the can.

During her closing argument, DA Sousa acknowledged the inconsistencies in the victim’s testimony and maintained that the victim “did testify that she was hit in the head, that the accused was the one who caused her that injury with that can, and the can found on scene had dents to it.”

PD Tong noted another inconsistency in the victim’s testimony, and suggested a lesser charge because the can of beans was not a deadly weapon in nature.

DDA Sousa argued a precedent in which the court had held that “anything that can cause substantial injury, although not by its nature” can be considered a deadly weapon. Given the cut and blood the victim sustained, Sousa concluded the can was a deadly weapon.

Judge Reeves agreed that a common item could be considered a deadly weapon, but maintained the court had to focus on how it was used to determine whether or not it was a deadly weapon.

Given the inconsistency in the victim’s testimony, the can was either thrown or used as a bludgeon. “If it was the latter,” said Judge Reeves, “that would be clear to me that that was assault with a deadly weapon.”

Judge Reeves said, “I’m going to go with what she told the officer on the day that it happened—that the item was thrown at her, struck her in the back of her head while she was down, caused the injury, then hit her apparently with her hands since there was no information another item was found.”

She held the accused accountable to a lesser charge of assault likely to produce great bodily injury. His two misdemeanors were certified.

The next court date is Feb. 3.

About The Author

Amy is a UCLA student majoring in English and Philosophy. She is interested in law and is from Burbank, California.

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