LAKEPORT, Calif. – Lake County’s sheriff took the stand on Wednesday to testify to his part in an investigation regarding an alleged fight between three Hells Angels and rival motorcycle gang members in June 2011.
Sheriff Frank Rivero testified on Wednesday morning as part of pretrial motions in the cases of Josh Johnson, Nicolas Carrillo and Timothy Bianchi.
The men are facing trial in May for allegedly fighting with Michael Burns, a validated Vagos motorcycle gang member, and Kristopher Perkin on June 4, 2011, at a tattoo convention at Konocti Vista Casino outside of Lakeport.
David Dabbs, a fourth Hells Angel member who was alleged to have been involved, remains at large in the case.
All three defendants in the case are charged with felony participation in a criminal street gang, and misdemeanor counts of disturbing the peace and battery; Bianchi is charged with felony assault with a deadly weapon other than a firearm; and Johnson and Carrillo each face a second misdemeanor battery count.
Carrillo’s attorney, Michael Clough, subpoenaed Rivero, along with District Attorney Don Anderson – who was in court but did not testify – as well as Deputy District Attorney Art Grothe, who is prosecuting the case and also didn’t testify; Jorge Gil-Blanco, a Hells Angels expert who didn’t testify due to time constraints; Sgt. Gary Frace; and Lt. Chris Chwialkowski.
Clough said the subpoenas resulted from the District Attorney’s Office’s “sudden” assertion that Rivero – who spoke to tribal leaders in order to get casino surveillance video of the fight – wasn’t going to be a material witness in the case after having testified at last year’s preliminary hearing.
The legal definition of a material witness is someone who has information that is significant enough to affect the case’s outcome.
Because Clough believes Rivero to be a material witness, he’s also seeking access to Rivero’s personnel records and disclosure of information that the prosecution is required to release under the auspices of the 1963 U.S. Supreme Court case, Brady v. Maryland.
Brady v. Maryland requires the government release to criminal defendants any information that could help clear them – including issues relating to the credibility of peace officers involved in their cases.
Rivero has been under investigation by the District Attorney’s Office for allegedly lying about his actions during a nonfatal 2008 shooting in which Rivero, while working as a sheriff’s deputy, shot at a man holding pepper spray.
Anderson told Lake County News last week that the matter had been concluded and he had sent his determination to Rivero’s attorney, but that he and Rivero’s counsel had agreed to a 10-day embargo on his findings. That embargo runs out at the end of this week.
Grothe acknowledged the Brady issue proceeding to the court, and emphasized, “We do not feel that Sheriff Rivero is a material witness,” and so any Brady materials would not have to be disclosed.
Rivero recounts involvement
Retired Judge David Herrick, who heard the case, asked if it was possible in the cases of some of those who were subpoenaed to read their previous testimony from the preliminary hearing. Clough agreed in the case of Frace, who was excused, but wanted Rivero to take the stand.
County Counsel Anita Grant, who appeared on behalf of both Rivero and Anderson, said Rivero was prepared to testify.
She made a point of saying that Rivero was not served at his place of business, but was served with a subpoena at his home over the weekend. his 10 year old son was present, and she said the subpoena service was scary for the child.
Clough said he personally had delivered a subpoena to the sheriff’s office previously but it evidently was not given to Rivero, thus the service at his home Saturday.
Rivero, who was on the stand for about 20 minutes, said he found out about the fight “shortly after it happened” from his watch commander. Within a day or two of the incident he said he reviewed the initial report and met with Det. Sgt. John Gregore.
Under Clough’s questioning, Rivero acknowledged that at his direction Frace – who was one of the investigating officers – was ordered not to talk to anyone about the investigation.
While discussing the case with Gregore, Rivero said he was informed that a deputy “had met with some resistance” when trying to get surveillance footage from Konocti Vista Casino. Rivero said he contacted the tribal chair, who referred him to the gaming commission, which in turn decided to give Rivero the recordings.
Rivero said he met with a casino employee who had bookmarked the videos and made Rivero a DVD with the recordings. Rivero asked for any video showing any Hells Angels members at the casino from their arrival to the time they left.
On a separate trip, Rivero said he picked up another DVD of additional footage, and he and Gregore also went to Sonoma County to discuss the case with a gang unit there.
Jai Gohel, Bianchi's defense attorney, asked Rivero if it was his understanding that sheriff’s employees had viewed some of the video recordings prior to him calling the tribal chair. Rivero said no, he did not know of anyone viewing them previously.
Gohel also asked if Rivero had requested the casino preserve any video of the Vagos. “I don’t recall,” said Rivero.
During brief questioning, Grothe asked Rivero if he had interviewed any of the assault witnesses. Rivero said no. He also testified that he transported the digital media back to the sheriff’s office and turned it over to Gregore.
Rivero gave order to silence deputy
Chwialkowski, who at the time of the incident was a sergeant on the evening shift, said he was briefed about the fight when he came on duty by Sgt. Andy Davidson. Rivero also called Chwialkowski on his cell phone to ask questions about the fight.
Chwialkowski followed up with Frace to get answers to Rivero’s questions. He said Frace briefed him about the events at the casino. At one point, Frace indicated that his report was completed and the incident was closed.
In another discussion with Rivero, Chwialkowski said Rivero told him to order Frace not to discuss the case with anyone else. When asked what the order was about, Chwialkowski said he believed it was related to the fact that Frace did not investigate the case fully and that it had to be looked into.
Clough asked Chwialkowski if that order was based on Rivero’s belief that the case had not been adequately investigated. Chwialkowski said that also was his conclusion, as there were a lot of unanswered questions.
When Frace testified during the case’s March 2012 preliminary hearing, he was still under orders not to speak about the case until Capt. Chris Macedo arrived to release him from that admonition, as Lake County News has reported. Grothe stated in court at the time that the sheriff's department had initiated and held open an internal affairs investigation on Frace following the June 2011 incident.
Frace had testified that he told Chwialkowski about seeing the surveillance video, only to have Chwialkowski come back later to inform him that Rivero was immediately ordering him not to talk to other deputies about the case.
During motion arguments Wednesday morning, Clough told the court, “Our argument is simple. At trial we are going to argue obviously that there were videos that weren't collected, that there was a faulty investigation.”
He said the testimony showed that Rivero played a major role in the investigation.
“There's no dispute that the videos are going to be the heart of much of the trial,” said Clough, who signaled he will file a motion to suppress the videotapes, which had “a number of gaps” in what they showed.
Also on Wednesday, Herrick granted a motion to quash Clough’s subpoena for information about the Hells Angels from the Western States Information Network, which was represented by the California Attorney General’s Office. WSIN is a regional information sharing system that provides criminal intelligence information and case and event de-confliction to law enforcement investigations.
Herrick did not issue a ruling on Rivero’s testimony and the Brady issues on Wednesday. Motion hearings are set to continue on Thursday.
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