Jimmy Ducote is probably not the most sympathetic of all figures. He has sat in custody for nearly three years for an arrest that occurred on December 23, 2009. A good deal of that is his own doing, as in September he was unsuccessful for the third time in attempting to dismiss his legal counsel, Public Defender Tracie Olson.
Mr. Ducote was facing 50 years to life in a case that remains highly questionable. He is charged with a Penal Code section 245(c), “Assault by means of force likely to produce great bodily injury and assault with a deadly weapon other than a firearm upon a peace officer” and evading a peace officer in violation of Vehicle Code section 2800.2(a).
According to Deputy DA Chris Bulkeley in a hearing on Monday, the matter was taken before the DA’s office’s “Three Strikes Committee” and they determined that a six-year offer was as low as they could go. He described that six years represented the upper term doubled (basically they would be treating this as a second-strike offense). He argued that this represented a reduction of 19 years from the two 25 to life sentences Mr. Ducote faced.
Mr. Ducote had been holding out for a four-year sentence, which would allow him to have been released with time served.
During the hearing on Monday, Ms. Olson indicated that they had made counteroffers of 4, 5.4, and 5.8 years, all to no avail.
After a lengthy diatribe in which Mr. Ducote lamented his inability to dismiss his attorney and the unfairness of the system, he indicated that he would likely take the deal rather than risk life in prison.
On Wednesday, the Vanguard confirmed with Ms. Olson that Mr. Ducote accepted the six-year plea offer, and will be scheduled to be released in the summer of 2014.
The real question in this case is whether the facts support the charges that Mr. Ducote faced.
Mr. Ducote had two strikes from 1979 – a rape and a robbery. He was hardly a model citizen, trying the court’s patience at numerous points in time.
But in terms of the facts of this case, the Defense maintains, with good justification that the entire incident was created by the actions, not of Mr. Ducote, but by Yolo County Sheriff’s Department Deputy Gary Richter.
In a Pitchess Motion to access the deputy’s personnel records – one that was granted by Yolo County Judge Janet Gaard though it revealed nothing – the defense describes the incident on December 23, 2009.
Deputy Richter, in his report, claimed that at approximately 11:06 p.m. he was following behind a tan Chevy pickup that pulled toward the shoulder of the roadway and then stopped with its front and rear driver side tires in the roadway. Deputy Richter claims that he pulled up behind the pickup and activated his spotlights.
He claims that he wanted to conduct a welfare check.
“Deputy Richter approached the driver side window and made contact with the driver, Jimmy Ducote. Mr. Ducote handed the Deputy his Mississippi driver’s license and California identification card. Mr. Ducote was the only occupant of the vehicle. Deputy Richter asked Mr. Ducote to shut off the vehicle’s engine. Mr. Ducote replied that he just fixed the starter and that if he shut the vehicle off, it would not start back up again. Deputy Richter reports that at that time he observed Mr. Ducote to have blood shot eyes and slow speech. Additionally, he observed a can in a brown paper back sitting the center cup holder,” Ms. Olson wrote.
When the Deputy asked Mr. Ductoe for proof of registration and insurance, Mr. Ducote handed him a clear, plastic envelope containing paperwork. A recently expired insurance card was visible on top. According to the motion, “Deputy Richter informed him the insurance was expired and again asked for current registration and insurance. Mr. Ducote informed him that the current paperwork was somewhere in the envelope.”
“At that point, Deputy Richter asked Mr. Ducote to accompany him to his patrol vehicle to locate the proper paperwork. Deputy Richter reports that he then attempted to open the driver side door using the outside handle. At that time, Mr. Ducote asked Deputy Richter why he needed to step out of the vehicle. Deputy Richter said that he needed Mr. Ducote to meet with him at his patrol vehicle to go over the paperwork. At that point, Mr. Ducote reached for the steering wheel and looked ahead at the roadway. Deputy Richter reports that he heard the engine accelerate. Before Deputy Richter let go of the door handle, the truck accelerated onto the roadway,” the motion reads.
Deputy Richter alleges in his report that “I had to step backwards so not to have my legs or feet hit by the rear tires of the pickup as it sped away.”
Deputy Richter would pursue Mr. Ducote for six miles, at speeds ranging from 40 to 65 miles per hour. Mr. Ducote’s vehicle stopped after running over Stop Sticks on the roadway, set up by Deputies Machado and Hayes.
Deputy Richter gave Mr. Ducote a PAS (preliminary alcohol screening) test, revealing that Mr. Ducote did not have any alcohol in his system.
According to the motion, “After Mr. Ducote was taken into custody, Deputy Richter asked him why he fled. Mr. Ducote explained that he was from Louisiana, where police officers may assault an individual when they get them alone at night. Mr. Ducote further stated that he was scared due to Deputy Richter’s size.”
As the defense notes, “Deputy Richter was traveling in the opposite direction of Mr. Ducote. The officer did not observe Mr. Ducote doing anything wrong. Regardless, the officer did a u-turn and quickly accelerated to catch up to Mr. Ducote’s vehicle.”
Ms. Olson adds, “Prior, Deputy Richter had not observed any Vehicle Code violations. Because the police car was advancing on him so quickly, and for no apparent reason, Mr. Ducote believed the officer wanted to pass him.”
He turned on his left turn signal to indicate to the officer that it was okay to go around him. The police car, however, did not go around him.
“Confused, Mr. Ducote immediately slowed down, pulled to the shoulder of the roadway, and came to a complete stop, again believing that he was simply giving the officer room to safely travel past. Instead, the patrol car pulled in behind Mr. Ducote’s truck and also came to a stop,” Ms. Olson.
What proceeded was Deputy Richter asking Mr. Ducote if he had anything illegal and asking Mr. Ducote for permission to search the truck. Mr. Ducote declined.
Writes Mr. Olson, “Mr. Ducote did not have blood shot eyes. His speech was not slow or slurred due to alcohol, but instead reflected a southern accent, which Deputy Richter should have figured out since he had already been handed a Mississippi driver’s license.”
Based on this, when Deputy Richter told Mr. Ducote to get out of his car and come over to the patrol vehicle, Mr. Ducote became suspicious and inquired as to why.
“Deputy Richter said he wanted to look through the paperwork at his patrol car. Deputy Richter touched his gun holster in an intimidating manner. Mr. Ducote told the officer that he, Mr. Ducote, didn’t feel right about exiting his vehicle all alone with the officer on a deserted road at night,” Tracie Olson writes in her motion.
Viewed in this light, both of the charges are highly questionable.
Whether Mr. Ducote rationally believed the deputy was up to no good is perhaps questionable. The fact that he had no actual basis for the stop and no reason to detain him is less so.
Nevertheless, the 245 charge is absurd.
As Ms. Olson argues, “Mr. Ducote drove straight onto the roadway. The Deputy was not in danger of getting hit by the truck.”
Nor is there evidence that he was attempting to do anything other than flee the scene.
Ms. Olson notes, “He lied in his report when he said he had to step back to avoid having his legs or feet hit by the truck’s rear tires.”
Moreover, she notes, “Mr. Ducote did not exhibit excessive speeds. He did not drive recklessly. In fact, when he ran over the spike strips, he was able to stop his truck in a safe, controlled manner. Mr. Ducote was ordered out of his vehicle by gun point, and he complied with further instructions.”
Could Mr. Ducote have taken the matter to court and have won? Probably at least the PC 245 charge.
As Ms. Olson argues, “His driving away did not constitute an assault on a peace officer because it was not likely that his act in driving away would cause Deputy Richter to suffer great bodily injury or death, that defendant’s act did not constitute an assault because it was not aimed at Deputy Richter, and that defendant feared Deputy Richter due to the nature of the stop (alone, at night, on a desolate country road, for a manufactured reason), Deputy Richter’s size (6’0, 220 pounds), Deputy Richter’s demeanor, and Deputy Richter’s demands to exit the car for no reason as well as his two failed attempts to force access.”
As the defense notes in their motion, Deputy Richter has a somewhat questionable history.
The Third District Court of Appeals reversed the trial court’s denial of a motion to suppress evidence, finding that in January 2010 Deputy Richter illegally searched an individual by the name of Kevin Hubert.
The defense notes that in that case, Deputy Richter stopped his patrol vehicle behind a car parked beside a market. The officer observed that Mr. Hubert had been in the same vehicle with another person who Deputy Richter knew was a drug user and who appeared to be under the influence. The officer then illegally searched Mr. Hubert.
The appellate court held that “the specific and articulable facts known to Deputy Richter did not warrant a reasonable suspicion that defendant was armed and dangerous.”
Deputy Richter was also involved in the Brienna Holmes incident back in 2009.
Writes Ms. Olson, “The credibility of Deputy Richter, among others, was at issue, as the jury was tasked with determining whether Ms. Holmes was indeed unlawfully resisting arrest. While Deputy Richter testified that Ms. Holmes was resisting and that it took 15 to 20 seconds to subdue her, the jury voted 10-2 to acquit Ms. Holmes of a battery charge (against another officer) and 6-6 on the charge of resisting arrest.”
She argues, “There exists a documented history of complaints by other citizens of Deputy Richter’s poor character, habits, customs, excessive force, and credibility when executing his duties as an officer.”
Mr. Ducote, having been through what he had, certainly did not want to take the chance and face potentially fifty years to life in prison.
—David M. Greenwald reporting
What was the second strike for and when?
As I reported 1979 two strikes rape and robbery.
Ah I missed that they were both in 79. What other crimes has he been convicted of since then. There are lots of questions that remain, like what other crimes have been pled down in the past to avoid the third strike, That’s not uncommon.
It doesn’t appear that Mr Ducote was detained by the deputy stopping behind him and the welfare check. Given the deputy’s account he at least obtained reasonable suspicion to briefly detain Ducote to determine if he was impaired. I advocate for the police to check people out who they believe may be impaired drivers.
I also noticed the discrepancy with the Mississippi drivers license and California ID. It would be worth checking to see if Mr Ducote was validly licensed to drive in California since the time frame of establishing a California drivers license is rather short once establishing residency.
The line about the spike strip is actually funny. Aren’t spike strips designed to make cars stop safely. If the goal wasn’t to safely stop fleeing suspects the police could just drop cement blocks in front of the fleeing suspect. What’s next, people showing how compliant they when they stop fighting the police after being handcuffed?
Mr. Obvious:
I don’t know what he has had since 1979. I know he’s not all there mentally and it contributed both to the length of this process and probably how he reacted to the Deputy. That said, he clearly did not assault the officer and the fleeing, I can buy, but it’s again a situation that the officer instigated both in his decision to pull over Ducote and his determination to find something incriminating on him. None of this rises to the need for him to either face a third strike or six years of plea, imo.
It has received very little media attention and I have not yet seen one advertisement regarding it, but on our ballot right now is Proposition 36, which would change the Three Strikes law. There are a couple of changes included: first, it would require that the 3rd strike be a violent or serious felony in order to require a mandatory life sentence; and second, for those third strikers already in prison whose third offense was minor, they will be re-sentenced to reduced terms.
In my opinion, this is a very good idea and deserves a yes vote.
However, an even better idea, to reduce the crowding and cost of incarceration in our state, would be to do what we need to do to reduce the recidivism rate. According to what I have read, Oregon is the model when it comes to such programs which work ([url]http://i.usatoday.net/news/pdf/Pew Center on the States, PSPP Recidivism Report.pdf[/url]): [quote]In prison, Oregon inmates receive risk and needs assessments at intake, and targeted case management during incarceration, along with detailed transition planning that begins six months before release. In the community, probation officers use a sanctioning grid to impose swift, certain consequences for iolations, creating consistency across offenders and from county to county. In both settings, offender programs are anchored in research and continually monitored and updated to optimize their effectiveness.
The change in the handling of offenders who violate terms of their supervision was striking. In the past, parole and probation violators filled more than a quarter of Oregon’s prison beds. Today violators are rarely reincarcerated.
Instead, they face an array of graduated sanctions in the community, including a short jail stay as needed to hold violators accountable.
“It’s pretty rare in Oregon for someone to be violated all the way back to prison,” said Oregon Director of Corrections Max Williams, who co-authored the measure as a Republican state legislator, “so we don’t have that revolving door that puts so much pressure on the prison population in other states.”
A key piece of legislation, passed with bipartisan support in 2003, helped fuel Oregon’s efforts. The bill, SB 267, required that any correctional program receiving state money be evidence-based in its design and delivery.15 [/quote]
Rich: Good post overall. I’ve written a few stories on Prop 36. It seems like almost a no brainer and it will likely pass. The one thing it doesn’t fix is that most people in for long sentences under three strikes are there as second strike offenders. That at least doubles the sentence. This law would revert non-violent third strikes to act as though they were second strikes.
In this case, that’s actually what the plea offer was twice the upper based term is basically treating this as though it were a second strike. Then again, if he were facing only a second strike, he’d have taken this to trial and probably at least beat the assault charge.
Related: I know that our death penalty in California is completely dysfunctional and that its implementation under the current regime makes having it much more expensive than the life-without-parole alternative. However, because
1)I strongly believe in vengeance and
2) I strongly opposes caging a human being (who is not psychotic) for his entire life and
3) it makes no sense to me to keep very elderly people locked up in expensive prisons or worse, in very expensive prison-convalescent hospitals and
4) we could, if we were so determined, fix the death penaly appeal process so it would be sure and swift and much less expensive,
I oppose Prop 34, which will end the death penalty and require life-without-parole sentences for murderers who are now death-eligible.
I can understand someone voting in favor of Prop 34 on the basis of
1) a moral objection to capital punishment or
2) the cost savings compared with what we have now or
3) an outsized fear that someone who is actually innocent may some day be executed in California.
But, in my opinion, life-without-parole is itself terribly immoral, esp. in cases where the killer is young and potentially redeemable and thus does not really belong in a cage decades after the act; and I am certain we could greatly reduce the cost of death cases if we were determined to do so by applying some incentive structure to keep those costs down and to keep cases moving fast; and we are very unlikely to ever execute someone who has had a fair trial, and the evidence in the case has been fairly examined in an appeals process and the evidence has been found to be inculpatory beyond a reasonable doubt. Also, as tragic as the mistaken execution of an innocent certainly would be, it is no more tragic than the later murder of another innocent who was killed by someone who had previously committed a murder but had not been convicted of his previous crime. These sorts of killings happen every day in our state. They happen in part because of failings in our judicial and law enforcement systems.
Re: Pitchess Motion, if there is nothing in the personnel file. One of my relatives was a cop so I don’t take this issue lightly. But come on. There are 2 sides to this. Nothing in the personnel file = the cop was a wonderful, stellar example of all the things we want a cop to be. Almost like an Andy of Mayberry. Other side = anyone who had a bad experience w/ the cop is way too afraid of retaliation on the person’s family. The victim does not file a complaint. Some people who are on probation have no way to defend themselves against heavily armed cops. Some people worry about family members. Some people just don’t have the courage to file a complaint against a cop. Anyone can check on the internet or yellow pages to see how many attorneys will take on a police misconduct case. See how many lawyers are listed in Sacramento who do police harrassmt or misconduct cases. Sigh.
I don’t have a problem with the contact, which was arguably consensual, maybe an issue with using the spotlight, that could be perceived as a detention in the mind of the driver, although it was not red lights or emergency lights, but most people know only cops have spot lights, so since a detention is in the mind of the suspect, a court may find that when the officer used his spot light, an detention occurred.
Of course the DA and the cop would argue it is reasonable for an officer to want to be able to see when approaching a veh on dark road. So the first question is was there a detention or was it a consensual encounter?
Next, the article said the driver gave the ID and DL to the cop? Why, was it asked for, if the contact was actually to check on the driver, why would you need his ID, unless you were starting a separate investigation after the contact. Which could be explained easy by the cop by saying the driver’s actions, speech, appearance and bag in the cup holder all indicated that there may be a crime of drinking while driving, so the officer could say he was investigating that, then for sure a detention triggered.
Has for asking him to get out of the car, very easy to justify, the car could contain weapons and makes it easier for the suspect to arm himself or flee and by moving the suspect to a more well lighted area to further conduct the investigation is reasonable.
The cop saying he could have been hit is a fairly routine position for cops to take. If the cop jumped in front of the car he could shoot the driver and claim he was trying to run him over. This is routine for CHP officers and the courts have ruled that officers cannot put themselves in a dangerous situation and then justify lethal force based on their voluntary actions, yet every time this happens, the cops get the benefit of the doubt. All cops know that when chasing someone in a car for minor offenses, the pursuit will stopped and terminated since the danger to the public is and should be greater than the crime. So if the cops can justify a violent or dangerous Felony, then the pursuit will not be stopped and they can chase him into a school yard with kids and justify the felony.
So by saying the car could have hit him or hurt him, the crime is now escalated to the dangerous or violent fleeing felon, and now it’s Go time and all bets are off.
With that logic, any cop could any person they contact could hit them or could hit someone else, not very sound but if it can be made to sound reasonable then it normally flies.
I think the 3 strikes law is a good law for long time career criminals, like many good laws, when they are abused or enforced by over zealous DA’s not with the spirit or intent of the law, then that abuse causes good laws to be changed or terminated, when in fact if DA’s that abuse the law were held accountable, that would be a better fix for the people.
Roger Rabbit “…but most people know only cops have spot lights..”
This is just not true and personally I wouldn’t stop if someone tried to pull me over with a spotlight.
“I think the 3 strikes law is a good law for long time career criminals, like many good laws, when they are abused or enforced by over zealous DA’s not with the spirit or intent of the law, then that abuse causes good laws to be changed or terminated, when in fact if DA’s that abuse the law were held accountable, that would be a better fix for the people.”
Three strikes passed because people did think it sounded good on paper, in theory we know it’s a bad law. It has destroyed too many families. Unfortunately based on past examples we can’t assume the court system will monitor itself.
Nemesis:
If you do not believe this then there would be no detention, someone who have been contacted several times or pulled over several times would say they have come to know that most all cops use their spot light when they approach or stop a car. And most cops would think this as well. The courts say the detention happens in the mind of the person being detained, so at what point did the suspect feel he did not have a right to leave, was it the chase, the spotlight, the cop asking him questions or when he gave his license and Id? The detention issue only comes into play if evidence or information obtained by the officer was in obtained lawfully or only due to an unlawful detention.
I still think 3 strikes is a good law if it is used and applied as it was intended for long time, on going criminals, that have high rates of repeating crimes and rap sheets several pages long. Now it is only used to force a plea or as leverage for the DA to get someone to plea so the DA can claim victory and get his Stat for a conviction. Not what the law was intended for. IMO
Roger Rabbit,
There are two issues here. One involves the method the police use to pull people over. The other is when should the police be allowed to search your car? There have been many instances in the past of people impersonating police to do harm when someone pulls them over, as well as, legitimate police officers who do harm to people when pulled over in an isolated place. There is no reason for an officer to make someone pull over in a dark isolated place.
If the officer was conducting a welfare check as he said he was, why did he tell the man to shut off his engine? Why didn’t he just ask if everything was all right? I have never heard of an officer asking someone to exit their car and come over to the police vehicle, that to me sounds extremely suspicious. The man had every right to leave at that point if he felt he was in danger, he did not speed he obviously was not weaving and he had no alcohol in his system according to tests.