"Things escalated at the spur of the moment when the decedent called my client a white boy"

"I don't find any evidence under any theory" or "I don't find any evidence under any theory I can see". First quote by Mr. Elvine-Kreis, second quote by  Deputy District Attorney Jackie Pizzo.

It was a case of you say theory, I say evidence, theory, evidence, theory, evidence, let's call the whole thing off.

A 995 motion was heard yesterday morning by Visiting Judge Schaefer in Courtroom 6 on the defense motion filed by Vincent Ortiz's attorney, Mr. Greg Elvine-Kreis. Judge Schaefer will have a written ruling by or before July 6.

Four members from the Colegrove family, one of the victim's family and one member from the Ortiz family attended this hearing.

Referring to the 995 motion filed by Mr. Elvine-Kreis, Judge Schaefer started the hearing by saying, "We are here because there are counts which the defendant was not held to answer to after the preliminary hearing."

Vincent Ortiz was not held to answer on the murder count of Daniel Colegrove. He was only held to answer for one of the attempted murder counts, that for Roger Surber. Mr. Elvine-Kreis' 995 motion seeks to dismiss charges against Vincent Ortiz for the jury trial.

"I have read the transcript of the preliminary hearing," said Judge Schaefer. "It was very confusing. I need to read it again." Judge Schaefer mentioned the use of pronouns referring to multiple people as one example. "Exhibits are not critic to the decision I have to make. I have read the pleadings each of you have submitted. I am not making a decision, I will make every effort to have the decision by next Wednesday. "

Initially, Deputy District Attorney Jackie Pizzo said that she would be glad to answer any specific questions the Judge had but that she had handed in a 15 page motion. She did respond after Mr. Elvine-Kreis' remarks.

Mr. Elvine-Kreis referring to a quote by Judge Marilyn Miles who was the Judge for the preliminary hearing said, "Judge Miles did make findings of fact. There was no evidence that supported the theories presented. He quoted Judge Miles as saying, 'I don't find any evidence under any theory'. "

"We are not challenging the Magistrate's (Judge Miles) decision, that is usually the case, the People are" said Mr. Elvine-Kreis. 

"There is no evidence that my client knew his father had a gun," said Mr. Elvine-Kreis. "There is no evidence for any theory other than speculation that there is aiding and abetting."

Referring to Ms. Pizzo's closing in the preliminary hearing, " Seems like is not a legal standard.'

"Their own investigator said on the stand that he was going to right a wrong." Then he cited a case, Burke. "Things escalated at the spur of the moment when the decedent called my client "a white boy." At this point, the Judge indicated he did not recall reading this in the transcript and Mr. Elvine-Kreis asked him to look for it. 

"He was short (referring to the marijuana amount). The marijuana deal was in the past," said Mr. Elvine-Kreis. "I believe the shooting happened because Rodney was upset at what the decedent was telling his son."

Judge Schaefer said, "I believe it appears that there are two problems. Whether he has been selling and whether sufficient quantity  was delivered."

Ms. Pizzo cited Pizano "as far as the People's ability to file information" and said it was "appropriate standard." She also said that was Judge Miles' said was, ""I don't find any evidence under any theory I can see."

"At no point did the defendant say, Oh my God, Dad you have a gun? He was not surprised because he knew his father had the gun."

Mr. Elvine-Kreis' brief response after Ms. Pizzo's remark was, "Absence of evidence does not make evidence."