Written by David Greenwald Wednesday, 09 January 2013 07:11
All told, the co-defendants faced 13 years in prison if convicted. The defense attorneys all along argued that this case was really a marijuana sale case and should be charged as such.
Two and a half years later, the DA's office finally agreed and allowed the co-defendants to plead to the transportation of marijuana charges that defense had been asking for throughout the trial.
As a result, the co-defendants, who were out on bail throughout, have been placed on three years of probation but will not receive any prison time.
During the preliminary hearing held in July 2011, Davis Police Officer Kierith Briesenick described the incident that began on May 5, 2010 when police served a search warrant on the home of a Davis resident at the 1500 block of Cypress on the corner of Drexel. During the search, they found multiple bags of marijuana, scales and US currency. One of the residents, a juvenile, was arrested.
During the course of the arrest, the juvenile received a text from someone with the moniker of "Chico," whom police recognized as belonging to defendant Israel Covarrubias, about the availability of marijuana for sale. Police intercepted the call and used the phone to lure Mr. Covarrubias to the site for the purpose of selling one ounce of marijuana.
Officers Edens and LaFlor parked on the street and watched as a green Honda pulled up, the trunk opened, and an individual, later identified as a Mr. Morales (who would be arrested and deported) took a bag out of the trunk and gave it to Mr. Fiero, a known drug dealer.
The co-defendant in this case is Amaris Rodriguez, the girlfriend of Mr. Covarrubias, who in mid-2011 gave birth to the couple's daughter. She was the driver in the vehicle. Mr. Covarrubias was in the right rear passenger seat.
Both defendants were on searchable probation, and the police found a digital scale in the purse of Ms. Rodriguez that had residue that tested positive for marijuana. A 2.9 gram bag of marijuana was found in Mr. Covarrubias' pocket, another brown bag with approximately an ounce of marijuana was found on the floor board, and a 3.1 gram bag was found under a seat.
The opinion of Officer Eden, formerly of YONET, is that the two bags that were an ounce in weight were possessed for sale while the smaller bags were consistent with personal use.
According to Officer Edens, there was no evidence of gang indicia found in the car or at the scene. But, he acknowledged he lacked any knowledge of gangs. The gang charges were added at the insistance of Officer Briesenick, along with the direction of Sheriff's Deputies Bautista and Oviedo, from the Yolo County Gang Task Force, who were on the scene.
Officer Briesenick testified that the home was a known Norteño household where there had been fights, graffiti and drug use periodically over an extended period of time. She testified that Mr. Covarrubias was a validated gang member from the Norteño Criminal Street gang, as was Mr. Fiero. Ms. Rodriguez was described as an associate with criminal street gang members, but not a gang member herself.
That determination was based on her relationship with Mr. Covarrubias, and the fact that she was on the scene at this incident.
The members of the house on Cypress were said not to be gang members, but associates.
As Defense Attorney Rod Beede would argue, the Penal Code section 186.22(b) statute requires a specific intent, "with the specific intent to promote, further, or assist in any criminal conduct by gang members," read Mr. Beede.
However, Officer Briesenick was fundamentally unable to articulate the benefit in this case to the criminal street gang other than the fact that there were two gang members and an associate in the case and the home had ties apparently to Norteño gang members.
The benefit, she argued, was monetary, but also security, in that by trading with known associates they were able to build trust that the transaction would remain secure.
This keeps the drug deal secret and develops trust. The problem is that she was asked if Norteños sell to anyone, and she responded in the affirmative. In fact, drug dealers benefit more when they deal to a broader clientele.
Deputy Public Defender Martha Sequeira asked if the secrecy motivation is merely speculation, and she asked if the drugs were sold outside of the Norteño family would it negate the benefit?
Ms. Sequeira asked what makes this case different from other drug deals - what specifically did the four individuals do to make it different than any other drug deal?
Officer Briesenick testified that people who deal drugs continue to be intimating and to instill fear in the neighborhood.
Judge Gaard was clearly willing to hold them over on the basis that there were two validated gang members in the vehicle and an associate, and allow a jury to sort out whether the action itself falls within the realm of section 186.22(b).
As defense attorney Beede argued, this is not some great criminal conspiracy exposed.
Ms. Sequeira, in her closing comments, noted that known drug dealer Mr. Fiero is apparently still out there allegedly selling marijuana, while there is no evidence that either defendant here (they are both out of custody) still is going to a home that is known as a drug haven - where kids go to get drugs and have done so for five to six years, according to testimony from the police.
She suggested that these were Mr. Fiero's drugs, and that he was driven by Ms. Rodriguez because he had a suspended driver's license and borrowed Mr. Covarrubias' phone. She argued that there is no direct evidence that Mr. Covarrubias had any knowledge of this deal in advance or that they were his drugs.
But the mild protest of the drug charges pales in comparison to the defense argument against the gang charges. Ms. Sequiera argued that there were no facts as to what the specific benefit was to the gang, and that the police officer's tie was thin and hypothetical at best.
Mr. Beede argued that these enhancements are dangerous to young people in general, and to these young people in particular.
He argued that the 186.22 charge requires that there be "specific intent" to benefit the gang and, in fact, there is not even credible evidence of any benefit at all. This is simply a small-time marijuana deal. These are not the Mafia. There is no kind of organized crime syndicate.
He asked, "What are they promoting?"
He argued these are a bunch of kids from a certain background who are enamored with a certain lifestyle. How are they specifically promoting a gang through a small drug sale?
He said that he could see the transportation, possession and possession for sale charges, but he called the enhancements to promote a gang lifestyle "lunacy."
"They did not do this to promote some mythical gang life on the street - it's lunacy," he argued.
But the system does not care. Both defense attorneys pointed out that, given the burden of proof at the preliminary hearing, it is easy for a judge to move this to trial and let a jury sort this out.
Judge Gaard, in her ruling at that time, said, "It's not easy," but found sufficient evidence that crimes occurred, with enhancements, to hold the defendants to answer for the charges.
---David M. Greenwald reporting
You have got to figure that the DA knows all these characters and wanted to pursue the case to get them off the streets but doing so depended on the gang charges. Once the judge threw out the gang charges the DA was left with pleading them out to probation for three years as a best option instead of risking a trial that would be hard to win as most marijuana cases are today.
Okay so the judge didn't throw out the gang charge but doubted they could win a conviction on it. i think that was enough to get the DA to back off. The baby came long after the arrest and maybe the DA took the needs of the child into consideration. Who knows, the whole case is stupid, a lot of time and money wasted over an Oz. of weed. You have got to wonder what the DA was thinking about these characters.
What happened to Fiero?