LAKEPORT, Calif. – The District Attorney's Office on Tuesday dismissed its case against a San Francisco man who had gone on trial earlier this year with his brother for a 2013 Clearlake Oaks home invasion robbery that ended in a man being shot and the attempted shooting of a police officer.
During an afternoon hearing before visiting retired Placer County Judge James Garbolino, District Attorney Don Anderson told the court that his office would not seek a retrial for Gregory Elarms, 30.
Elarms' attorney, Doug Ferguson, said later Tuesday that he was pleased with the dismissal and that “it was the right result for my client.”
Elarms stood trial along with his brother, Dion Davis, 27, for the June 26, 2013, home invasion at the home of Ronnie and Janeane Bogner, during which their adult son, Jacob, was shot by Davis, who also shot at Lt. Tim Celli of the Clearlake Police Department during a police pursuit.
On March 2, a jury returned a verdict convicting Davis of armed robbery, burglary, assault with a firearm on Jacob Bogner, assault with a semiautomatic firearm on Bogner, mayhem on Bogner, grand theft of a firearm, vehicle theft, vandalism, making threats of violence to Tim Celli, assault with a semiautomatic firearm on Celli, assault with a deadly weapon on Celli, negligent discharge of a firearm, accessory to a robbery or burglary, and conspiracy to commit a robbery or residential burglary, and 21 special allegations.
The jury hung on two charges of attempted murder, with Anderson asking for those charges to be dismissed against Davis.
However, the jury had hung on all 10 charges against Elarms: robbery, burglary, two firearms assaults on Bogner, two firearm assaults on Celli, grand theft, vehicle theft, vandalism and conspiracy.
At that time, Garbolino had tentatively scheduled Elarms' retrial for April 29, along with the Tuesday status conference.
Both Elarms and Davis appeared in court on Tuesday with their attorneys, Ferguson and Bill Conwell, respectively. Before the hearing, Garbolino met with Anderson, Conwell and Ferguson in chambers.
The first order of business at the hearing was for Garbolino to speak to a male juror who had left the deliberations after the first day.
Once the man left the jury and an alternate had been selected, deliberations had to begin over again. However, Garbolino needed to confirm the former juror's verdicts on counts of vehicle theft and vandalism, which he ordered set aside at the end of the hearing.
When it came time to discuss Elarms' case, Anderson told the court, “The people have decided not to retry Mr. Elarms and move to dismiss.”
Garbolino subsequently ordered the case dismissed and said Elarms was to be released.
As for Elarms' brother, Davis is to return for sentencing on May 20, at which time he's facing an estimated 30 to 40 years to life, Anderson said Tuesday.
Conwell told Lake County News on the day of the verdict that by the date of sentencing he intends to have a motion for a new trial ready to present to the court.
During Davis' court appearance, Garbolino also noted the need to reduce a charge of grand theft of a firearm from a felony due to a misdemeanor, a result of changed guidelines established last fall under Proposition 47.
Garbolino also set aside one of the charges for which Davis was convicted, accessory to a robbery or burglary, a charge that hadn't pertained to him but which hadn't been caught in the charging documents, Anderson explained.
Ferguson thanked the court.
“Good luck, Mr. Elarms,” Garbolino said in ending the hearing.
Elarms, who first had to be returned from the jail, was released from custody later Tuesday afternoon.
Anderson told Lake County News following the hearing that considering the nearly even split by which jurors deadlocked in Elarms' trial, he didn't believe he could overcome it in a new trial with the evidence he had to offer.
He explained that in a second trial, “The odds of getting a conviction are less than what we had.”
The case against Elarms had faced several challenges, including the fact that, unlike his brother and three other co-defendants, Elarms wasn't taken into custody in connection to the case until July 2014, more than a year after the robbery.
On the day of the robbery, Davis – along with his girlfriend Jenaya Jelinek, and Sean Foss and Tyler Gallon – had all been arrested in Clearlake following a pursuit and standoff with police.
Another issue arose because, originally, Janeane Bogner has misidentified another man in a police lineup. When that man, Dexter Currington, was arrested, he remained in jail for six months, even after providing sheriff's Det. Doug Dahmen with alibi information.
Dahmen's handling of the case – including failure to follow up on the Currington alibi, loss of or failure to make a recording during Janeane Bogner's interview in which she misidentified Currington, and other issues – were the subject of testimony and even a special hearing for the judge and attorneys to question Dahmen again.
Anderson said some of the jurors he spoke to found both Dahmen's testimony and the original misidentification of Currington problematic.
Ferguson told Lake County News on Tuesday afternoon that he had been in negotiations with the prosecution following the end of the trial, and that Anderson had offered Elarms an agreement in which he would plead to felony conspiracy and receive credit for time served.
“My client said he wasn't there so he rejected the offer,” Ferguson said.
As a result, “I wasn't sure of what was going to happen today,” said Ferguson, who had appeared surprised in court when Anderson moved for the dismissal.
Ferguson said he appreciated the prosecution's integrity in not attempting to push the case against Elarms forward.
Two of Davis' co-defendants in the case, Tyler Gallon and Sean Foss, are to be in court on April 1 for a management and settlement conference. Jelinek pleaded out to a lesser crime of second degree burglary last year and is now out of custody. She also testified in Davis' and Elarms' trial.
Anderson told Lake County News that he has offered a plea agreement to Foss, which so far hasn't been accepted, although he has not yet made an offer to Gallon.
If Foss doesn't accept the agreement, Anderson said he anticipates setting trial dates for both Foss and Gallon on April 1.
“We're either going to settle it or set the trial,” Anderson said.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.