LAKEPORT, Calif. – A Lake County Superior Court judge on Friday denied motions to set aside and dismiss felony charges against three Sonoma County Chapter Hells Angels members charged for their alleged part in a June 2011 fight.
After having heard arguments on the motions in July, Judge Michael Lunas returned on Friday to deliver his ruling in the case against Josh Johnson, Nicolas Carrillo and Timothy Bianchi.
Tentatively scheduled to go to trial in October, the men are facing charges for a fight with Michael Burns, a validated Vagos motorcycle gang member, and Kristopher Perkin on June 4, 2011, at a tattoo convention at Konocti Vista Casino in Lakeport.
Charges against the three men include felony participation in a criminal street gang, and misdemeanor disturbing the peace and battery. In addition, Bianchi faces felony assault with a deadly weapon other than a firearm, and Johnson and Carrillo each are charged with an additional misdemeanor battery count.
Motions filed on behalf of the men by their attorneys – Patrick Ciocca for Johnson, Michael Clough for Carrillo and Jai Gohel for Bianchi – alleged that the Lake County District Attorney's Office failed to turn over discovery in the case that could have changed the outcome of the March 2012 preliminary hearing.
Specifically, the discovery in question related to Sheriff Frank Rivero, who was involved in the case because he collected surveillance video from the casino in the days after the fight and testified at the preliminary hearing.
The defense argued that the prosecution failed to disclose key details about District Attorney Don Anderson's investigation into allegations that Rivero lied about his actions in shooting at an unarmed man in February 2008, while he was a deputy sheriff.
This past February, Anderson concluded that Rivero had lied and placed him on a “Brady list” of officers with credibility issues.
The Brady list is so named for the 1963 US Supreme Court case that requires the prosecution to disclose to defendants in criminal cases any potentially exculpatory material, including information about the credibility of officers involved in their cases.
The defense argued that Anderson's office violated that key tenet, and also didn't disclose important information about the “county line incident” in May of 2012, when Rivero sent sheriff's deputies to the south county to block a contingent of Hells Angels reportedly on their way to fight with a group of Vagos who had camped out in downtown Lakeport that day. However, no Hells Angels appeared.
Lunas, after having reviewed extensive case law, said the defense's motion to dismiss under Penal Code 995 was not the correct procedure to challenge the alleged procedural errors.
In order to find there were Brady violations that justified dismissal, Lunas said he had to conclude that disclosing the information would have changed the outcome of the preliminary hearing. However, that was not his finding.
The preliminary hearing was held before Judge Andrew Blum, who ordered the three defendants to be held to answer on the charges.
Lunas pointed out that, based on his review of the case documents, it appeared that the defense did have information about the Brady investigation and the county line incident in hand at the time of the preliminary hearing. He said the prosecution had disclosed the Brady investigation to the defense around March 2012.
He also noted that the defense made no objection at the time of the preliminary hearing about those incidents.
“I do not find that it's reasonably probable that it would have changed the outcome,” he said of the information disclosure the defense was seeking.
If he excluded Rivero's testimony entirely, “It's clear to me that the remaining testimony before Judge Blum was more than significant evidence to raise a strong suspicion necessary for a holding order.”
It was noted in court on Friday that at the preliminary hearing Rivero had been asked about the Brady investigation and had denied that he lied about the 2008 shooting, which Lunas said was “collateral impeachment.”
Lunas said the defense had asked to simply declare a false start and start over again. “There was some appeal to that,” he said, adding, “The court has seriously considered those arguments.”
He went on to explain that he did not find any bad faith or misconduct at the preliminary hearing, adding that it appeared there were advantages to the defense in Rivero being called.
Following Lunas' ruling, Clough asked the judge to reconsider. Clough said the defense did know about the county line incident but argued that it's important to separate the types of charges in the case.
Lunas said he had read Clough's argument and made his ruling. Clough said he was entitled to make a record of his concerns.
Lunas replied that he was going to require that those concerns be made in writing, according to court rules, and wasn't going to have an open-ended, freewheeling argument. He said it sounded like Clough was trying to reargue the case.
Clough asked if Lunas was issuing a written opinion. Lunas said no, and Clough responded by asking that a written opinion be prepared. Lunas directed the court clerk to prepare a transcript, which he said would constitute the written opinion Clough requested.
The attorneys noted there is a pending motion for discovery materials that hasn't yet received a response or been placed on the court calendar, and likely will cause an issue with the scheduled October trial date.
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