By Gina Kim
SANTA BARBARA, CA – Judge Michael Kellogg here in Santa Barbara County Superior Court last week noted a victim’s unwillingness to cooperate while recounting his older brother’s physical attack, leading to discrepancies between his testimony and those of police officers on the scene.
Three witnesses were called to testify in the preliminary hearing. The first was both the alleged victim and defendant’s younger brother, a 17-year-old high school student brought to court by subpoena because of his express desire not to participate.
“Before anything, I’d like to clear up I’m not against my brother,” the teen said. “If I’m going to say something it’s because I’m obligated.”
His older brother (the name is withheld by The Vanguard to protect the identity of the victim) was held on counts of actions—as the older brother—likely to cause great bodily injury, willful cruelty toward a child, and noncompliance with a police officer. Battery with serious bodily injury was also considered but as a potential alternative to “as the older brother,” amounting to a total of three felonies and one misdemeanor. 
On June 17 of this year, the older brother came home drunk from a party with his friend, a possible second accused in question. Both were living with the victim at the time. District Attorney Carl Barnes confirmed the older brother was his brother’s only legal guardian because their parents reside in Mexico.
Judge Kellogg acknowledged why the victim might feel “unwilling to cooperate” given the circumstances, nodding toward the brother present in court.
According to the victim, the brother and his friend entered the victim’s room while he lay in bed around 8 to 9 p.m., making “accusations that were not true.” The older brother claimed it was his brother’s fault “they” had done something to him and his friend. Their verbal dispute spiraled into a physical fight once the friend lashed out at the younger brother.
Officer Maureen White, who recounted the victim’s report later that night, clarified in her testimony that the younger brother was accused of dealing drugs. Moreover, their verbal altercation intensified when the older brother asked his brother if he wanted to fight him, to which his brother repeatedly said no.
The victim stated he pushed back in self-defense at his brother’s friend, getting on top “to avoid being hit.” The older brother interfered, grabbing his brother by the neck and pinning him back into the bed.
Barnes asked the victim how tight his brother’s grip was.
“Mas o menos,” the victim answered, stating his brother did not apply much pressure to his neck. Although he had difficulty breathing, he said it did not get to the point where he experienced pain or hearing loss. He also denied losing consciousness.
Conversely, the victim’s earlier statement to Officer White indicated he couldn’t breathe, couldn’t hear anything around him, and lost consciousness. Furthermore, his brother’s friend, he told the officer, had punched him five times in the stomach while the older brother pinned him down.
In court, Judge Kellogg asked the victim to demonstrate how his brother choked him.
The victim forked his right hand around his Adam’s apple—thumb pressed against one side and forefingers pressed against the other. Photographic evidence displayed a close-up of the victim’s neck following the incident, blotched in red with scratches and a thumb imprint.
Officer White confirmed she had seen those marks the night of the incident.
The victim maintained his brother only tried to get him off but “took different measures” due to the alcohol. “He is normally not like that,” he stated, “when he drinks he has another personality.”
Once his brother released his hold, the victim fled to call the police. He said his brother’s friend struck him with a blow to the head, intending to knock the victim unconscious so he couldn’t contact authorities, but around 11 p.m. Officers Netzahualicoyotl Ortiz and Maureen White responded to the scene.
Officer Ortiz attempted to question the older brother after his brother identified him as the assailant.
In witness testimony, Ortiz confirmed the defendant’s inebriated state. The elder brother had glassy red eyes, smelled of alcoholic beverage, and had unstable balance, leaning against the doorway to stay upright.
Moreover, Ortiz described the defendant as verbally combative and noncompliant—accusing Ortiz of entering private property and refusing the officer entry.
When the accused reached out, Ortiz grabbed his right hand, causing the defendant to violently pull back in retreat. In response, Ortiz said they took him to the ground, to which the older brother, they claim, pulled his right hand back, reaching toward his waistband.
The gesture gave Ortiz reason to believe he carried a concealed weapon, so Ortiz struck the defendant over his head. Officers were then able to successfully detain the defendant.
Defense Attorney Meghan Behrens questioned Ortiz about whether the defendant would’ve fallen “flat on his face” if he hadn’t pulled his hand back during their fall.
“He could’ve still caught himself with the hand that went towards his midsection,” Ortiz answered.
Although the victim said on the stand that he did not lose consciousness, Attorney Barnes noted how the victim also claimed to tell Officer White the truth, suggesting sufficient evidence the defendant could produce death or bodily harm.
Behrens argued the victim didn’t actually lose consciousness, stating “he didn’t know what losing consciousness felt like.” She maintained her belief the victim spoke the truth in court.
Judge Kellogg dismissed the count on willful cruelty toward a child, acknowledging how brotherly scuffles might “produce results you don’t intend.”
“I have seen some horrible things done to children,” Judge Kellogg added in reference to previous cases, but denied the motion to dismiss counts of the older brother’s assault and battery based on the use of unjustifiable force and the “fragile nature of the airway.”
Given the older brother’s actions around Officer Ortiz, the count on noncompliance was held.
The court is scheduled to reconvene for an arraignment hearing on Dec. 2.
