By Gabriela Rose and Audrey Sawyer
MODESTO, CA – A motion to dismiss criminal charges in Stanislaus County Superior Court Wednesday for a man in custody accused of a shooting at a gas station was denied by the court, and the case moves to a possible trial.
Deputy Public Defender Kendall Simsarian argued that, according to previous victim testimony, the description used to describe the perpetrator of the shooting did not match the physical description of the accused.
Another point raised by the defense argued the statute regarding claims the accused was found to be in possession of a controlled substance while being armed did not apply in this circumstance to the accused.
Judge Valli Israels ultimately concurred with the prosecution to deny the motion to dismiss, saying that there is sufficient cause to hold the accused to answer for the charges.
DPD Kendall Simsarian asked the court to consider the victim’s witness testimony failed to identify the accused as the perpetrator of the shooting.
According to the description of the perpetrator’s physical appearance during the victim’s testimony, the perpetrator “has black hair, and is wearing a white t-shirt.” But, DPD Simsarian told the court that the accused has “blonde hair and was wearing a gray t-shirt at the time.”
It was noted by the defense that the victim was shown a picture of the accused in a photographic lineup and specifically did not identify him.
“The victim was specifically asked whether or not this was the person, the victim does not identify him. We should accept the victim’s word that the truck was different from what was being driven by the shooter. The victim said that it was not the same vehicle, and that it is not the same person.” emphasized DPD Simsarian.
DPD Simsarian added any evidence which would contradict what was previously stated could be considered circumstantial evidence, but that the court ought to take word of what the victim said, that the accused doesn’t match the provided description.
Regarding conversations of the possession of controlled substances while being armed, DPD Simsarian argued, “While he had a firearm, the methamphetamine was not found on him. According to the testimony, this would have been around 3 miles away, and it is not the intent of the statute to punish conduct that is occurring from 3 miles of another, even if they looked to find any weapons found at the residence. I did make an argument here regarding the constitutionality.”
The prosecution’s motion to oppose stated the accused identified himself and his vehicle in surveillance footage obtained from a gas station, placing him at the scene, close in time to the shooting.
The prosecutor said the defense had only explained a portion of the victim’s statement, noting, “A victim identified a truck. A photo lineup was shown to the victim, he was unable to select someone out of that lineup. However, he said a white t-shirt and a description of the individual.”
The prosecution added footage was shown of the accused at the gas station with his vehicle during the time of the shooting and argued the accused was a clear match, stating, “The defendant reported his truck as stolen during the hour of the shooting, when the defendant answered questions during interview, he had identified himself as the one in the footage.”
The prosecution claimed the accused had also stated to police the station must be “out to get him,” which was used as an indication of guilt.
“When he was stopped, he had the gun at his person. With the search of the home, the gun applies to 11370.1 (crime to be in possession of a controlled substance while being armed with a firearm at the same time). The gun was inside the home next to the drugs. I would say that elements are met for the charges,” said the prosecutor.
In response, DPD Simsarian suggested that the timing of what occurred would not make sense to link to the accused.
“We do not take issue to the video that the accused has to be close in time to the shooting, but it does not actually make sense for it to be him. It makes more sense to accept the victim’s testimony himself. In that sense, there should be no question that the identity was not proven satisfactory of the court holding him to answer,” Simsarian said.
Regarding the comments made by the prosecution about the gun, DPD Simsarian argued the defense argument is now even stronger, noting, “Now that I know we are not talking about a gun on his person, it is an even stronger argument because the weapon was not readily available. We do not know when the drugs were in the home, or when the gun came into the home.”
Judge Israels, after hearing both arguments, sided with the prosecution and denied the motion to dismiss.
