By Hongyi Wen
SACRAMENTO, CA – The simple comment of “He is just holding the gun for someone else” by a girlfriend was enough to hold and charge defendant Marcus Diaz on a felony possession charge, according to a judge’s ruling Friday in Sacramento County Superior Court.
Officer Eric Nedeljkovic conducted a traffic stop on Diaz last Dec. 2, continued to a residential probation search – after Diaz’ girlfriend volunteered his address – and found one firearm in his bedroom and charged Diaz with illegally receiving and possessing a firearm.
During the bedroom search, officers discovered many mails belonging to Diaz and his girlfriend. And they found a firearm in the night stand.
After a record check on the firearm, officer Nedeljkovic said the firearm was “stolen out of Florida in 2008.”
Officer Nedeljkovic said that based on Diaz’s record, he is not supposed to own or purchase any firearm.
He said, “He had a valid restraining order against him, prohibited possessing firearms and ammunition.”
After informing Diaz’s girlfriend about her Miranda Rights, she stated that Diaz was “holding the gun” for someone else and they are not the owner of the gun.
During Cross examination, Assembly Public Defender Ashley Burg asked whether the officers also searched the other occupants’ rooms, and Nedeljkovic answered, “No, we just did a protective sweep for the house.”
Burg continued “Did you confirmed with Mr. Diaz that he occupied that room?”
“I believe when I asked him initially when I pulled him over for the traffic stop, he denied living there all together. Tried to distance himself from that place,” Nedeljkovic said.
Burg followed up with a similar question regarding Diaz’s girlfriend’s answer during the traffic stop, and Diaz’s girlfriend had a contradicting answer.
Nedeljkovic said, “She stated that they had a bedroom together at the residence.”
Officer Nedeljkovic stated that after the traffic stop, Diaz and his girlfriend were separated in different police patrol cars. They were not told they arrested nor in handcuffs, but officer Nedeljkovic still read them their Miranda Rights.
“We responded to the address and conducted a probation search of the room, located the firearm, and went back to both occupants in the vehicle, read them their Miranda Rights, and spoke to them,” said the officer, adding he also asked Diaz’s girlfriend to clarify the statement that Diaz was just “holding the gun” for someone else, to which she answered she doesn’t know anything more.
DDA Wieder added Exhibit 1 for evidence, which is the official restraining order of Diaz.
Judge Kevin R. Culhane ruled that there are sufficient cause to believe Diaz is guilty of these charges and he is held to answer these charges.
Public defender Burg also presented a reduced felony to misdemeanor motion, arguing that this was a simple possession case. Diaz had not been seen with the gun, he was not involved in any kind of incident with the gun. Diaz also has a minimal criminal history, and he is employed currently.
Judge Culhane pointed out that one of the charges is already a misdemeanor, DDA Wieder agreed.
DDA Wieder added that during the testimony it had been shown that Diaz was “holding” the gun for someone else, which constituted the felony charge of illegally receiving or purchasing a firearm.
Judge Culhane ruled that the court is denying the motion, and argued the severity of the restraining order violation.
The jury trial date is set for June 14.
Hongyi Wen is a junior at UC Santa Cruz majoring in Sociology. He is from Guangzhou, China.
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