Reliance on Gang Expert Testimony in Gang Injunction Trial Fraught with Pitfalls

One of the questions that continue to plague us as we observe this case is how accurate the evidence may be.  With few exceptions, the prosecution has relied upon the testimony of officers, talking about various criminal incidents.  The problem is that in a criminal trial, the defense is able to cross-examine witnesses and cast doubt on the claims of law enforcement.

This is not a fatal arrangement for the defense, as there is still the question about whether this gang rises to the level of a public nuisance that cannot be combated with existing laws and regulations, and would therefore require a special injunction.

However, in terms of understanding the magnitude of the problem, we have to have an accurate portrayal of the crimes and incidents.  I just have little confidence in that process.

Two exchanges in particular illustrate this problem.  One occurred on Friday, when Defense Attorney David Dratman was cross-examining Joe Villanueva.

Mr. Dratman asked Joe Villanueva about Billy Wolfington, who Mr. Dratman directly represents in this trial.  He asked Detective Villanueva questions about his arrest, but the detective could not remember much.

After a series of lengthy questions about the arrest, Mr. Dratman asked the detective what Mr. Wolfington did for the Broderick Boys gang.  Detective Villanueva requested a 1040 privilege.  This is  the part of the evidence code that allows a public entity to refuse to disclose “official information” or “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”

Mr. Dratman became angered by this and argued that it was crucial for the defense to know what Mr. Wolfington did for the gang in order to place things into context and understand why he was arrested on a particular occasion – an arrest that never made it to this civil proceeding.

Judge White, however, granted Detective Villanueva the privilege, and took the court reporter, the Detective, and herself into her chambers.

When they came back out, Mr. Dratman requested that whatever was said should be reconsidered by Judge White, and should not affect her decision when concluding the trial because the defense is unaware of what was stated without their presence. Judge White said the confidentiality of what was spoken will not affect her decision.

On Monday, Sgt. Jason Winger was asked to testify about an incident in which Rudy Ornelas was convicted to 45 years for attempting to shoot Abel Trevino.  In July, the Vanguard covered Mr. Ornelas’  trial and knows the details of the case rather well.

Of particular interest is that Sgt. Winger described the interrogation of Abel Trevino following the incident.  According to Sgt. Winger, Mr. Trevino told him during the interrogation that he had been involved in an incident with Claudio Magobet and another individual, and that the other individual, who turned out to be Mr. Ornelas, shot at him.

As has become standard, the DA’s Office had the court take judicial notice of the conviction, claiming that Mr. Ornelas was a gang member (although this case was never charged as a gang case), and moved on.

In this case, however, we know from the trial that there is a video of that interrogation, and the defense has requested discovery of that video. They have received the transcript of the video and will soon receive the video.

The video is key, because Mr. Trevino did not immediately point the finger at Rudy Ornelas. Instead, he pointed the finger at Claudio Magobet.

At the start of the interview, he seemed agitated and baffled that he would be shot over some woman who was in his words “nothing.” The problem is that Mr. Ornelas had no relations with that woman, but Mr. Magobet did. It was only partway through the interview, after prodding from the police, that he changed his story and started naming Mr. Ornelas.

Our belief, after watching that trial, was that Mr. Magobet was the shooter, not Mr. Ornelas.  Mr. Ornelas did not have the motivation to shoot his longtime friend.  Mr. Magobet had disputed with Mr. Trevino over a woman.  It was Mr. Magobet’s gun.

In August, the Vanguard spoke at length to Mr. Ornelas’ Attorney, Rodney Beede, who informed the Vanguard that they would be appealing the sentence, based upon the insufficiency of the evidence.

“My most intensive grounds for appeal are that the courts are permitting people to testify under plea bargains and under intense pressure to say what the prosecution needs them to say,” said Rodney Beede at the Yolo County Court House , on the Thursday following the sentencing of his client.

“If you go back and look at the paperwork, and you find Claudio Magobet’s paperwork, you will find that plea bargain and a caption in it which says, ‘he promises to tell the truth,'” Mr. Beede continued, “But think about it for a moment, if you’re promising to tell the truth, you don’t have anything that supports the prosecution.  They’ve got nothing to offer.  So the truth has to be the one [that the prosecution wants said].”

He continued, “The old expression is that the truth will set you free.  Well, the truth, for the purposes of Claudio Magobet, are whatever he needs to say to get out of this.”

“The complaint that we defense attorneys have is that the persons that say that they saw these things are under intense pressure to resolve the cases and not serve the life sentences,” Mr. Beede said.

“Mr. Magobet’s attorney advised him that if he had nothing to offer the prosecution he would sit where Rudy [Ornelas] was.  Meaning that Rudy would be blaming Claudio, Claudio would be blaming Rudy, and the jury has a very long history of saying we don’t like either one of these people.”

“Tiffany Martinez was the woman who now was working with Claudio Magobet, who had children by Abel Trevino,” Mr. Beede told the Vanguard.  “Abel [Trevino] had a history of beating her, [so] Martinez said Claudio and Rudy came over, Rudy had a gun, and they were looking for Abel Trevino.”

“On the witness stand she said, ‘I only said those things because they put me in a motel room with Mr. Trevino and he started beating me and told me I had to say these things,'” she continued.  “So they showed her tape to the jury [from] right after it happened.  They put the Officer [Steve Godden of the West Sacramento Police Department] on the stand, saying they didn’t pressure anybody, they took her statement right out in the parking lot.”

The jury believed that version.  “I think the key evidence in the case was a guy named John Gilman,” said Mr. Beede.  John Gilman was the neighbor to Mr. Trevino who witnessed at least a portion of the event.  However, when Mr. Gilman was on the stand, he was unwilling to say that Mr. Ornelas was the one who shot at Mr. Trevino.  But as Mr. Beede pointed out,  “Right after the event he told authorities, “The guy that I saw shoot at Abel Trevino was the guy who was known as Rudy.”

Mr. Beede thought that, given the conflict in the two testimonies of Mr. Gilman, the jury was more willing to believe “what he was willing to say right after the event.  They just determined that.  We disagree, but they just determined that.”

He said, when he talked to members of the jury afterwards, they believed Mr. Gilman’s initial statements.

Rodney Beede said he was disappointed in the outcome of the trial.  Mr. Ornelas and Mr. Trevino, according to Mr. Beede, were lifelong friends and, while Mr. Ornelas had a criminal history, he did not have a history of this kind or level of violence.  “Claudio Magobet was angry that the woman he was with had a momentary sexual experience with Abel Trevino.  Everything was hot that day.  Magobet had the gun.  Magobet admitted he wanted to hurt him.”

People view with some skepticism the statements of defense attorneys, but for the most part, a defense attorney is not going to go on the record with a reporter unless he has a compelling reason to believe that his client is innocent.

For the purposes of the Gang Injunction Trial however, it is important to recognize that a number of these incidents were far from black and white, in terms of the facts.  In the end, a number were judgment calls and, more importantly, it is possible that the jury got some of them wrong.

Certainly, after watching the video in the Ornelas trial, Sgt. Winger’s testimony on Monday appeared misleading, at best.  Mr. Trevino was not immediately putting the blame on Mr. Ornelas, as the Sgt.’s testimony implied. Rather, he started out pointing the finger at the other defendant, and only after prodding and a phone conversation did he change his testimony.

At the trial itself, Mr. Trevino, on the first day of testimony, had no memory of the events. Then, suddenly, he returned the next morning with a perfect recollection of what happened.  He had been on probation at the time of the incident and was fearful of returning to jail.  In fact, he had to be placed into custody in order to secure his testimony.

Bottom line here is that the police and DA’s Office had maximum leverage over several key witnesses, including two of the participants, both of whom eventually turned on Mr. Ornelas.

The question then for this trial is how much can we trust these kinds of accounts?  How does such an account demonstrate gang activity? We have already seen incidents in which the DA’s Office has offered no prison time in exchange for admittance to gang activity under PC 186.22(A).

The plaintiffs have largely been reluctant to bring forward material witnesses, but those kinds of witnesses offer the best opportunity for both sides to make their case.  The plaintiffs need to show a pattern of criminal nuisance from the gang, that leads to fear and intimidation, while the defense needs to be able to determine if these purported incidents are really about gang members and gang violence.

This one was not.  It was about a group of individuals who had been low-level offenders getting into a dispute, and then violence ensued.  This was not a case about gangs, it was about a crime and a whodunit, and it is still not clear the police and DA’s Office got it right.

If that is what this gang injunction is to be based on, then it will be on very shaky ground.  In the case of Rudy Ornelas, at least, they have a videotaped interview to look at.  In other cases, it is bits and pieces strung together through police reports and expert testimony, so who knows what really happened.  In many of these cases, the defendants simply took plea deals to avoid exposure and prison time.  What does that really show?

—David M. Greenwald reporting