by David M. Greenwald
WOODLAND – Many believe that three men who were ultimately convicted in the 2002 Halloween murders of Robert Stepper and Eric Folsom were in the wrong place at the wrong time, and had nothing to do with those murders. Two of them—Ernesto Arellano and James Olague—are seeking the possibility of being resentenced under PC § 1170.95 as part of the SB 1437 legislation that took effect in 2019.
But first, they have to get past serious arguments from the prosecution that the jury special circumstance findings negate the possibility of resentencing.
Deputy Public Defender Ron Johnson on Friday acknowledged “the complicating factor is the special circumstances.”
Johnson attempted to counter prosecution claims that the standard is that his client “could not be convicted” that “he actually needs to make a separate showing that other theories were not proposed at trial.”
“That simply isn’t supported by any case law,” Johnson argued. Instead, Johnson argued that the defense theory is that the prosecution’s case rests on what is now “an invalid theory.”
Instead, Johnson argued that the burden on the defense is “a low showing,” he said, “The petitioner has to show facts that if accepted entitle him to relief.”
In his motion Johnson writes, “In what would seem like a recipe for an erroneous conviction taken from the innocence project’s list of causes for wrongful convictions, Mr. Olague was convicted following trial for the murders of Robert Stepper and Eric Folsom as well as the attempted murders of Vicki Folsom and Jessica Valdez.”
Testimony was based “largely on the testimony of former co-defendants who exchanged their testimony for offers that amounted to substantially less time than their exposure at trial as they were facing special circumstance murder charges, testimony about post-arrest conduct in the jail by a ‘snitch’ who was also facing a life sentence under the three-strikes law, an eyewitness identification of the actual shooter (not Mr. Olague) in court despite a failure to identify the individual prior to trial, and at least one episode of prosecutorial misconduct that the court of appeal found ‘troubling’ and ‘clearly’ misconduct.”
In particular, Johnson points to “the lack of evidence against” Olague and that the theory of guilt was that “Arellano, a northerner shot caller, was upset with one of his underlings, Mr. Stepper, over a drug debt. Rather than deal with an internal gang problem internally, as would be the norm within a gang, the People theorized that Arellano concocted a plan to assault or kill Mr. Stepper by joining forces with a hodgepodge of characters including a rival gang members and an individual who was not a member of any gang to either kill or assault Mr. Stepper.”
On Friday, Johnson acknowledged that “the only complicating factor was that he was convicted of a special circumstance” and that had he not been convicted of that special circumstance “there would be no doubt in anyone’s mind that he would be entitled to an OSC hearing.”
He added that the theory against Olague “was exceptionally weak on anything other than a nature and probable consequence theory.”
In his argument, Ron Johnson relies heavily on the 2016 Brown case, and Judge Richardson pointed out that subsequent rulings limited Brown to that specific case. “Reading Brown, you have to admit that the facts were somewhat unique,” Judge Richardson said.
Johnson agreed “it was a very fact-specific analysis” in Brown but also noted that the evidence was much stronger against Brown than against Olague. “It’s astonishing how weak the evidence was 
against Olague.”
He noted that “a plan occurred” but “Olague wasn’t even at the meeting.
“Nobody places Mr. Olague at that meeting,” he said. The only evidence was from a third party—“a snitch”—who got out of much more serious charges.
Meanwhile, Robert Spangler, representing Ernesto Arellano, noted that the prosecution theory was that Arellano was the mastermind. The key evidence came from a witness, who, like most of the others, “(was) admittedly drunk almost to the point… of passing out from alcohol.”
According to the testimony, the victim Robert Stepper owed Arellano money and the latter asked two men to beat him up. They said no and Arellano asked Oscar Cervantes, the third man convicted and alleged to be the shooter, “to handle it.”
“That’s the scenario that we start with,” Spangler said. “The vast majority (of the prosecution’s burden) went directly to natural and probable consequences.”
Spangler argued, “The instructions allow a juror to find that Mr. Arellano was an aider and abettor—no one suggested Mr. Arellano was present at the time of the killing.”
“All of this—the prosecution argues—is the natural and probable consequence of that plan to beat up Stepper,” he said. “I don’t see any opportunity for the prosecution to do anything other than to allow a rehearing.”
Yolo County Deputy DA Melinda Aiello noted that the prosecution concedes the first two factors under 1170.95. She said, “It’s that third prong that the parities seem to be at complete odds and that’s the could not be convicted now under the current law.”
She argued, “It seems as if the defense is trying to persuade this court that there is no scenario in which somebody couldn’t state entitled to an OSC—and that is just nonsensical.”
She argued that the “could not be convicted” clause is a requirement for the court to do some “gatekeeping” in order “to keep the criminal justice system from being overwhelmed with baseless petitions.”
She said, therefore “we do have to look at the language of ‘could not be convicted.’”
From her perspective, the jury findings meant that there was no possible way that the court could find that “these petitioners could not be convicted under the current state of the law.” She argued, “This is about as black and white as it could get.”
Judge Richardson will take the matter under advisement and expects to issue a ruling by early September, in which he could order full evidentiary hearing or he could deny the petition, cutting off SB 1437 as a path to redress this conviction.
—David M. Greenwald reporting
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