On Tuesday morning following arguments by the various sides, Judge David Rosenberg upheld assault and battery charges against Vincente Marroquin and Fabian Martinez for their alleged role in an attack on a fellow inmate in 2016 while in custody at the Yolo County Jail. But the judge dismissed the gang charges against the men, calling them “speculation” and ruling that speculation was insufficient to get a holding order.
The main charges of battery with serious injury inflicted, Penal Code section 243(d), and assault with force likely to produce great bodily injury, PC section 245(a)(4), remain in effect, as do the infliction of great bodily injury enhancements, PC section 12022.7(a).
Arguing on behalf of his client Mr. Martinez, conflict counselor James Granucci argued that this case was about an officer testifying to watching a video – there were no witnesses, the alleged victim who was allegedly attacked by the two men has not talked, and will not testify.
He described the attack as minimal, occurring over the course of six seconds where the victim sustained, in his estimation, a cut on the forehead.
He believes that the attack here does not rise to the level of the current charges and noted that the injury was caused when he hit a wall. Great bodily injury, he argued, must be an injury more 
than moderate.
He also attacked the testimony of gang expert Deputy Dana (Tello) Simpson, arguing she was barely qualified as a gang expert. (There was some exchange on this point and Judge Rosenberg clarified that while Deputy Simpson was qualified on matters of criminal street gangs, she was less qualified on gangs in custodial settings).
Mr. Granucci argued that the deputy knew nothing about his client, her opinion was based strictly on the statutes, and “the People should have to put on more evidence” in order to get a holding order on the gang charges.
Deputy Public Defender Martha Sequeira, representing Mr. Marroquin, added there is no legally admissible evidence that her client has any gang ties at all. She argued that Deputy Simpson’s arguments were strictly based on the fact that the co-defendant is supposedly an active gang member.
The theory was that the Norteños had used this attack on the victim, a white, as a means to maintain control over the “pod.”
She also attacked the foundation of the main charges, arguing that there was no evidence that the victim here suffered an injury in the altercation, and believed that at best this should be a misdemeanor PC section 242, a simple battery.
Ms. Sequeira closed by arguing that this was the best the evidence was going to get after two years, and that it was not enough to get a holding order.
Deputy DA Robin Johnson pointed out that this was a preliminary hearing and, for the purposes of the preliminary hearing, there is more than sufficient evidence to get a holding order.
On the main charges, she pointed out that the victim was being punched on the ground, and that he was hit, fell to the ground, and was motionless. She suggested evidence that he may have been unconscious at the time, although there were no medical reports to back this up.
He received eight stitches for one injury and five for another, she argued. For the purposes of the preliminary hearing, she argued that was sufficient.
On the gang charges, she argued that both men actively participated with Norteños and that the testimony of the gang expert was that the pod was a Norteño stronghold, and the fight benefited them by enhancing their reputation and maintaining their stronghold.
Judge Rosenberg upheld the assault and battery charges. He qualified the evidence, noting there was “some evidence to hold them to answer for counts 1 and 2.” He added that there was some evidence the victim here was non-responsive and unconscious, and therefore that indicates the injury was more than moderate.
On the gang evidence, he held there was sufficient evidence that the Norteño Criminal Street Gang was operating here, and that their members engage in a pattern of criminal conduct. He also noted there some evidence that the defendants are members of the gang. He noted that there are “minimal” tattoos to back up that assertion.
However, at the same, he noted that not every crime committed by a gang is gang related.
He noted, as indicated above, that Deputy Simpson had experience with regard to criminal street gangs, but little experience on how they behave in a custodial setting.
Moreover, he noted that there was no evidence the victim was a rival or a member of a rival gang. There is no evidence of gang words or epithets being used.
He lamented the fact that the victim will not testify and suggested this might be due to intimidation. However, he said, he was required to follow the law here.
He said there was only speculation. There was no evidence about the intent of the attack. “Speculation is not enough,” he said.
Therefore, he held there was not sufficient evidence to hold the defendants to answer on the gang charges contained in count 3 or the gang enhancements to the main charges – counts 1a and 2a.
He scheduled an arraignment on the information for October 12.
—David M. Greenwald reporting
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