May 16, 2015

Exclusive remarks from Benjamin Carter's attorney and the entire text of the 995 motion that got the murder charge dismissed against Carter

Mr. Acosta has literally pulled a miracle for Benjamin Carter. On the lam, Carter called LOCO instead of his own defense attorney. Carter is lucky that he is not facing murder charges. The preliminary hearing was prosecuted by DDA Luke Brownfield and this was under the previous administration.

DA Maggie Fleming's administration inherited this case and DDA Andrew Isaac is currently prosecuting the case and the jury trial.

As I  discussed in another link below, with just the remaining Count 2 motion left, the defense can file a Romero motion. Carter could still accept the People's offer before trial.

I already reported on the bail/or hearing with DDA Andrew Issac's remarks. See link below. On Friday, this is what I posted:

There was a very brief disposition and reset hearing this morning in Courtroom 1 right now. No resolution in the Carter case.
The title sums up what happened at the hearing. No one else but Carter's wife and I were in the courtroom.
Pre trial June 1 at 2 p.m. Trial Confirmation June 24 at 2 p.m

The following is from Carter's defense attorney, Michael Acosta summing up the last two posts. 

"Bail/OR  review hearing: Defendant requested schedule bail of $100,000, People opposed reduction from $1.25 Million.  Judge Feeney orders reduction to $250,000.  Still beyond Carter's reach.  So, he remains in custody.  Set for trial on a time not waived basis within 60 days on County 2, Possession of a Firearm by a Prohibited Person.

Mr. Acosta also added the following remarks:

This is the 995 motion that got the murder charge dismissed against Benjamin Carter, as amended and granted,  Motion as to Count 1 granted.  Motion as to County 2, corrected per 995a as follows:

PC Section 995a. 
   (b) (1) Without setting aside the information, the court may, upon
motion of the prosecuting attorney, order further proceedings to
correct errors alleged by the defendant if the court finds that such
errors are minor errors of omission, ambiguity, or technical defect
which can be expeditiously cured or corrected without a rehearing of
a substantial portion of the evidence. The court may remand the cause
to the committing magistrate for further proceedings, or if the
parties and the court agree, the court may itself sit as a magistrate
and conduct further proceedings. When remanding the cause to the
committing magistrate, the court shall state in its remand order
which minor errors it finds could be expeditiously cured or
corrected.
   (2) Any further proceedings conducted pursuant to this subdivision
may include the taking of testimony and shall be deemed to be a part
of the preliminary examination.
   (3) The procedure specified in this subdivision may be utilized
only once for each information filed."

Here is the entire text of the 995 motion that got the murder charge dismissed against Carter:


MICHAEL P. ACOSTA, ESQ. 


Attorney for Defendant

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF HUMBOLDT

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

BENJAMIN JASPER CARTER,

Defendant.
Case No. CR1402688

FIRST AMENDED NOTICE OF MOTION
 TO SET ASIDE INFORMATION
(Penal Code §995)

Judge:   Hon. John T. Feeney
Dept:     1
Date:  May 13, 2015 2p.m.
TO THE DISTRICT ATTORNEY OF HUMBOLDT COUNTY AND/OR HER REPRESENTATIVE:

               PLEASE TAKE NOTICE that at the above date and time, or as soon thereafter as the matter may be heard, the defendant will move for an order setting aside the information filed herein. The motion will be made on the ground that the defendant was committed without reasonable or probable cause and/or that the defendant's due process rights have been violated by the addition of new allegations to the information after the preliminary examination.  The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on the transcript of the preliminary examination, and on such oral argument as may be presented at the hearing on this motion.
Dated:04/24/15

_________________________________
Michael P. Acosta, Esq.
Attorney for Defendant
                                                                                          

MEMORANDUM OF POINTS AND AUTHORITIES

I.     STATEMENT OF THE CASE
     A criminal complaint in this matter was filed on June 3, 2014 consisting of two counts, and alleging in Counts 1 and 2, respectively, that the defendant had violated Penal Code §187(a) [Murder] and Penal Code §451(b) [Arson of an Inhabited Structure or Property].   A two-day preliminary hearing was held on August 12th and  13th , 2014 before the Honorable Judge Dale A. Reinholtsen, after which the defendant was held to answer only for the violation of Penal Code  §187(a).  An Information was subsequently filed on August 20, 2014 ,  alleging in Counts 1 and 2, respectively, that the defendant had violated Penal Code §187(a) [Murder] and Penal Code §29800(a) [Possession of a Firearm by a Felon]. 

II.  STATEMENT OF FACTS
     On or about April 16, 2014, during the late evening hours,  the defendant, Benjamin Jasper Carter, was present, as a social guest, at the residence of Tommy Smith, a single-wide trailer located on a parcel adjacent to Connick Creek Road Garberville CA. [Reporter's Transcript of Preliminary Examination,   page 5, lines 15-28]. Mr. Smith had expressly invited Mr. Carter, along with his wife, Melinda Carter,  to his residence for a barbecue, at the request of Mrs. Carter's younger sister, Margaret Bigger, with whom Mr. Chapman, the alleged victim, had recently ended an intimate relationship. [Id., page 5, lines 25-28, p. 30, lines 1-8].  After dinner, Ms. Bigger received communications from Zachery Jacob Chapman, the alleged victim, with whom Ms. Bigger had recently ended a  relationship. [Id., p.6, lines 10-14, 19-22].  In those communications, Mr. Chapman asked Ms. Bigger if he was interrupting something, then told Ms. Bigger that he wanted to talk to Mr. Smith and that he didn't want her hanging out with Mr. Smith, and that he (Mr. Chapman) wanted a shotgun  that he claimed some possessory interest in. [Id., page 6, lines 10-14, 27-28, page 7, lines 14-15].    Mr. Chapman ended the communications to Ms. Bigger by stating that he was coming to Mr. Smith's residence.[1] [Id., page 7, lines 7-9, 19-21] Ms. Bigger directly informed Mr. Smith and Mrs. Carter of Mr. Chapman's imminent arrival. [Id., page 7, lines 23-25].  Mr. Smith's proximate reaction to this information was to arm himself with a .22 caliber rifle, turn off  all of the trailer's interior lights with the exception of one bedroom light, exit the trailer into its dimly lighted yard, and cower behind a nearby tree, leaving his three social guests on their own.[2][Id., page 68, lines 18-27].   The defendant had gone outside after dinner and it is unclear whether Mr. Carter knew of Mr. Smith's imminent arrival. [Is., page 68, line 6].
     Mr. Chapman's approach was first heard from a distance, as his black Chevrolet Camaro made its way up the winding course of Connick Creek Road to Mr. Smith's gated yard.  As witnessed by Mr. Smith, according to Detective Cheryl Franco, Mr. Chapman traversed the closed gate without hesitation, trespassed into Mr. Smith's yard, and was seen holding a silver-colored .22 caliber semi-automatic pistol while walking directly towards Mr. Smith's trailer.  Mr. Chapman pulled back the slide ejector to chamber a round and ready the gun the for firing. and then loudly demanded that the defendant retrieve a shotgun from an unspecified  location  [Id., pages 68-69].  Mr. Chapman, whose postmortem toxicology report revealed was under the influence of both alcohol and a potentially lethal amount of methamphetamine, then invaded Mr. Smith's trailer, still brandishing the pistol, and stepped to the left towards the bed in the direction of Ms. Bigger and Mrs. Carter.  Mr. Chapman pointed the firing-ready pistol directly at Ms. Bigger and loudly rambled on about the shotgun for a few minutes.  [Ibid.]
     The defendant, who was at that point unarmed and uniformed of the reason(s) for Mr. Chapman's arrival, complied with Mr. Chapman's demand to retrieve a shotgun from an unknown location and quickly entered the trailer with the shotgun.  Immediately upon the defendant's entry, the defendant witnessed Mr. Chapman aiming the cocked gun directly at Ms. Bigger and also in the general direction of  his wife, Mrs. Carter, sitting right next to her.  The record reflects that Mr. Carter did not immediately fire the shotgun, but waited for a reaction from Mr. Chapman. Mr. Chapman fully turned to face Mr. Carter, maintaining his aim of the .22 caliber semi-automatic pistol, with round in chamber and hammer cocked, but now with Mr. Carter squarely in its sight.  The barrel to barrel lethal force confrontation between social guest and home invader lasted only three to five seconds, with nervous utterings from both men, and then Mr. Carter, his host having abandoned him, and still facing the barrel of a loaded gun, chose to fire first.  [Id., page70, lines 1-4].
     Mr. Chapman died from the singular shotgun round fired by Mr. Carter.  Mr. Carter then put the shotgun down. There is only speculation in the transcript as to what happened to the shotgun after Mr. Carter fired it. 

III.                     ARGUMENT
A.  THE DEFENDANT HAS BEEN ILLEGALLY HELD TO ANSWER FOR THE VIOLATION OF PENAL CODE §187(a)  DUE TO THE LACK OF ANY COMPETENT, ADMISSIBLE EVIDENCE PRESENTED AT THE  PRELIMINARY HEARING ON THE ELEMENT OF MALICE.
       A motion to dismiss may be filed in the trial court under Penal Code §995 to dismiss an information on the grounds 1) there was insufficient evidence to hold the defendant to answer, or 2)  when the record reflects that the defendant was denied a substantial right at the preliminary hearing.  The court's review of the motion is limited to evidence which is contained in the transcript of the preliminary hearing. [People v. Crudgington, 88 Cal. App 3d. 295, 299 (4th Dist. 1979)].  An accused may be held to answer if the evidence presented provides probable cause to believe that the accused committed the crime, that is, that a man of ordinary caution or prudence would be lead to believe and conscientiously entertain a strong suspicion o the guilt of the accused.  [Rideout v. Superior Court of Santa Clara County, 67 Cal 2d. 471,474 (1967)] The reviewing judge may not substitute its judgment for the weight or credibility of the evidence and any findings of fact by the magistrate are binding; however, the reviewing judge may disregard inferences that “derive their substance from guesswork, speculation, or conjecture.” [Birt v. Superior Court, 34 Cal. App. 3d. 934, 938 (3d Dist. 1973)].
     In the instant matter, no witness testified regarding the existence of malice aforethought, an essential element of a Penal Code §187(a) violation, which distinguishes it from a violation of Penal Code §192(a) [Voluntary Manslaughter]. In fact, testimony at the preliminary examination, transcript demonstrates that the defendant had no knowledge that Mr. Chapman would be present at Mr. Smith's residence that evening before Mr. Chapman's communications, and that Mr. Carter was only seen with a weapon of any sort just three to five seconds before the lethal shot was fired.  There was no evidence regarding motive and no other circumstances that would imply malice aforethought.  Thus, the preliminary hearing transcript only supports the theory of a sudden quarrel or provocation.  Thus, the defendant should not have been held to answer as to the violation of Penal Code §187(a).

B. THE DEFENDANT HAS BEEN ILLEGALLY HELD TO ANSWER FOR THE VIOLATION OF PENAL CODE § 29800(a)) DUE TO THE TOTAL LACK OF EVIDENCE REGARDING THE DEFENDANT'S STATUS AS A PERSON PROHIBITED FROM POSSESSING A FIREARM.
     There must be some evidence to support each element of the charged offense. [Garabedian v. Superior Court of City and County of San Francisco, 59 Cal. App. 2D 124 (1963); Barber v. Superior Court, 1 Cal. App 4th 793, 795 (3d Dist. 1991)].  The charge must be supported by admissible evidence. If inadmissible evidence was received over objection, the reviewing judge must disregard it and weigh the sufficiency of the evidence by what remains. [Whitman v. Superior Court, 54 Cal. 3D 1063, 1068 ((1991)].  Remand to correct a minor error is permissible only when the evidence in the record at the time of the remand order provides most, if not all the evidence necessary to hold the defendant to answer for the charged offense and does not involve a substantial rehearing of evidence, but only limited questions and answers. [Garcia v. Superior Court, 177 Cal. App. 4Th 803 (6th Dist. 2009)].
     In the present matter, the preliminary examination transcript contains neither testimony nor documentation that the defendant is a convicted felon.  Status as a felon is a key element of the offense, as to which no evidence was presented.  Similarly,  in People v. Meza, 189 Cal. App. 4Th 468 (2d Dist. 2011), the total absence of evidence that a police officer was acting lawfully in a case of resisting an officer was not deemed a “minor error of omission”).

     C. THE DEFENDANT WAS DENIED THE SUBSTANTIAL RIGHT OF DUE PROCESS AT THE PRELIMINARY HEARING AS TO ALLEGED VIOLATION OF PENAL CODE § 29800(a).
     The prosecution may file an information alleging offenses other than those charged in the complaint if those offenses arise out of the same transaction as the offenses for which the magistrate committed the defendant and are supported by the evidence presented at the preliminary hearing.  [People v. McGee, 31 Cal. 2d.229, 239 (1947]; Jones v. Superior Court, 4 Cal. 3d. 660, 664-665 (1971)].  However, where the defendant could not have “reasonably anticipated the new crime charged in the information and would have conducted the preliminary hearing differently had he known the prosecution contemplated such charge, the defendant is denied a substantial right at the preliminary hearing and the new charge in the information will be dismissed. [People v. Manning, 133 Cal. App. 3D 159, 168 (5th Dist. 1982); People v. Brice, 130 Cal. App. 3D 201, 207 (1st Dist. 1982)].
     As mentioned, the original Complaint consisted of two counts, with Count 2 alleging a violation of Penal Code 451(b).  This allegation was so speculative that it was dismissed for lack of probable cause at the preliminary examination.  However, it was a serious enough felony allegation to warrant substantial investigation and preparation before the preliminary examination and a substantial dedication of  cross-examination time during the preliminary examination.   The combination of charging the defendant with a very speculative, but serious felony which was then dismissed for lack of probable cause, and then adding a new felony charge after the preliminary hearing, creates circumstances ripe for the denial of a substantial right at the preliminary hearing.  In these circumstances it is almost given that the defendant could not have anticipated the additional charge and would have most certainly conducted the preliminary hearing differently. 
     The defendant facing 25 to life for the Count 1, and a serious felony in the original count two would not have anticipated the addition of any more charges due to the gravity of the original two counts, and, in fact, could not have anticipated the new County 2 because no physical nor photographic evidence of a firearm that may have been in the possession of the defendant was presented at the preliminary hearing, nor was there testimony that such evidence had been collected by witnesses for the prosecution. Furthermore, the defendant could not have anticipated the newly added charge because the circumstances of the homicide indicate that a) the defendant or others were in imminent peril of great bodily harm, b) that without preconceived design on his part the defendant a firearm is made available to the defendant,  c) that his temporary possession was for no longer a period than was necessary to defend himself or others, and d) that no other  means of avoiding the danger was available.  Under these circumstances, the an individual, even a convicted felon, is entitled t defend himself or others, with a firearm. [People v. King, 22 Cal. 3D 12 (1978)]  This necessity defense and the law supporting it rendered any anticipation of a Penal Code §29800 charge moot from the defendant's perspective, as the defendant anticipated that a jury would either 1) acquit him of the murder charge based on self-defense, in which case he would not be liable for using a firearm per People v. King,supra, or 2) convict him or murder, in which case a charge under Penal Code §29800 would be relatively trivial, as a one-third the mid-term sentence derived from a 16, 2, or 3 sentencing spread (which is only 8 months) would be tacked on to a 25 to life sentence.  Therefore, the defendant could not have anticipated the new PC§29800 charge.
     Furthermore, the defendant would with certainty have conducted the preliminary hearing in a very different manner.  if the newly added Count 2 had originally been charged instead of the Penal Code §451(b) allegation, then the defendant would have specifically subpoenaed Mrs. Melinda Carter and, possibly Mr. Smith, to testify as to the location(s), ownership, and actual or constructive possession of the retrieved shotgun both before and after the homicide.  Moreover, the defendant would have focused pre-hearing investigation on discernment of those contested facts.  Instead, the preliminary hearing transcript dedicates substantial time to the arson charge, but contains only cursory questioning regarding the location, ownership, and possession of the firearm before homicide, and mere speculation regarding the shotgun's disposition after the homicide. 

IV. CONCLUSION
     WHEREFORE, the defendant, Benjamin Jasper Carter,  prays that the reviewing Court set aside the information in its entirety, as the preliminary examination transcript is totally lacking in competent,
admissible evidence related to key elements of the crimes charged in Counts 1 and 2, and a substantial
right has been violated by the addition of a new charge after the preliminary hearing.
Dated:  05/16/15




                                                                       
MICHAEL P. ACOSTA, ESQ.

Attorney for Defendant





[1]. The preliminary examination transcript does not reflect that an invitation or license to enter Mr. Smith's real property and/or dwelling was extended to Mr. Chapman by Mr. Smith nor anyone present at his residence.
[2]The preliminary examination transcript does not reflect the presence of or any communication from Mr. Smith until after Mr, Chapman was shot.

Links:

May 15, 2015

Marissa Carlson tells her attorney she wants to blow this joint but her criminal past foils her plans


This afternoon Marissa Carlson was in Courtroom 5. The District Attorney's office filed "a first amended petition to revoke her probation" from an older case in 2014 and she also had a OR/Bail hearing on the new charges from 2015.

Carlson animatedly spoke with her attorney Mr. Kaleb Cockrum privately and it was loud enough to gather she wanted out of the Humboldt County jail.

DDA Roger Rees told Judge Joyce Hinrichs to deny the request because "the charges are serious and she has a number of failures to appear in the past case."

Judge Hinrichs agreed and declined to release Carlson on OR due to the "potential danger to the community and concerns for public safety."


Previous post:



May 12, 2015

Just saw her be released in court and here she is back again,

I sat in court and watched Marissa Carlson be released and here she is back in court again.



12 criminal cases in various stages, some resolved, traffic cases, failures to appear and bench warrant.

Just another typical day for Humboldt law enforcement, courts dealing with the same frequent offenders.

Press Release:


On 05/12/15 at about 5:27 a.m., Officers were dispatched to the 1500 block of 15th Street for the report of two suspicious females.  The caller said the females knocked on the door and when confronted said they were looking for a friend’s house.  The females then walked across the street and were seen checking gates and windows. 

Officers located Marissa Carlson, 25, and Jeannine Griffith, 30, both of Eureka, near the location of the incident.  Carlson was positively identified and was arrested for attempted burglary and probation violation.  Griffith was arrested on an outstanding misdemeanor warrant for possession of a switchblade knife.  Both were transported and booked into the Humboldt County Correctional Facility.

Ferrer jury asks to see both taped interviews around 10:15

Waiting for Ferrer jury who us deliberating. They have asked to see both the video and audio interview.

Benjamin Carter withdraws time waiver, does not accept offer, jury trial set for July 6

There was a very brief disposition and reset hearing this morning in Courtroom 1 right now.

The title sums up what happened at the hearing. No one else but Carter's wife and I were in the courtroom.

Pre trial June 1 at 2 p.m. Trial Confirmation June 24 at 2 p.m. Jury trial July 6.


May 14, 2015

Family of Douglas Anderson releases the only public statement they wish to make regarding the Ferrer trial


We have watched the trial of Juan Ferrer closely including the closing statements made by both the prosecution and defense. We hope for justice in this case but in reality we live a thousand miles away and it is the people of Humboldt County that will have to live with the consequences of the jury's decision. We wish only for the truth to come out and for Douglas' good name and integrity to be restored. Douglas had his life taken away in a violent act by a man who has repeatedly lied and shown no remorse. We find the defense's decision to blame Douglas for his own murder shameful and disgusting. They have claimed Douglas, a 50 year old unarmed man decided to attack 3 much younger people on a dark street simply because of their dress and his falsely alleged homophobic views. This defense was pursued in spite of testimony from several witnesses refuting that Douglas had ever acted violently or used profanity, and easily obtainable proof that Douglas supported the rights of all people and specifically the LBGT community.

He did so publicly - please see screen shots of his Facebook page from April 3, 2013:



The facebook status says "To all the people who unfriended me because of my support for equal marriage, rights...I never liked you anyway)

Douglas was a quiet, thoughtful, creative and artistic man who repeatedly championed the rights of all people no matter their race, gender, sexual orientation or economic status. He was the victim of a "Violent punk night!" as posted on Nick Stoiber's Facebook page and "liked" by Sophie Rocheleau shortly after Douglas was killed. If it could happen to someone like Douglas, it could have been anyone that crossed Juan Ferrer's path that night. We would not wish this kind of loss on anyone. Losing Douglas has left a hole in our hearts and lives that will never be filled.

The Family of Douglas Anderson




Benjamin Carter's bail reduction hearing doesn't go his way, he does not accept People's offer yet

Today, there was a special set at 3:30 p.m. in Courtroom 1 with an intervention and bail/OR hearing in the Benjamin Carter case.

Here is what happened per DDA Andrew Issac who is prosecuting the case.

In light of the dismissal of the homicide charge pursuant to his 995 motion, Mr. Acosta requested bail be reduced from $1,250,000.00 to $100,000.00  in accordance with the bail schedule, which suggests but does not mandate  $50K for a violation of Penal Code §29800 (felon in possession of a firearm) and $50K for a strike.

The DA’s office objected to setting bail per the schedule,   and referred to Penal Code §1275 and the factors recited in, including public safety and the defendant’s criminal record.

Judge Feeney set bail at $250,000.00, &150,000.00 over the baseline bail schedule, citing    Mr. Carter’s criminal record and the fact that after the events in question Mr. Carter  fled the county and was apprehended in Arizona.

The Court inquired regarding a potential resolution. The District Attorney’s position as to the gun charge has never changed. Mr. Carter may plead as charged to the gun charge and admit the strike, or go to trial. The District Attorney has not offered Mr. Carter, and will not offer Mr. Carter, any plea bargain.

Mr. Acosta requested the case go over one day.

The case is on for a disposition/resetting hearing tomorrow (Friday) at 10 am.

Ferrer jury to start deliberating tomorrow at 8:30

And now we wait.

The options, the jury has are second degree murder, involuntary or voluntary manslaughter. The information below is from shouse law website.

In Penal Code 187 (a) PC, California law defines murder as "the unlawful killing of a human being or a fetus with malice aforethought."

Unlawful killing:

 "Homicide" refers to the killing of another person, whether lawful or unlawful.  A homicide therefore includes murder, manslaughter, as well as justifiable killings.
"Murder" is the most aggravated type of homicide.  It is always unlawful.  What distinguishes murder from manslaughter in California law is the fact that malice is necessarily involved in a murder.

Malice aforethought:


Malice aforethought
"The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim.  When a defendant 'with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,' he acts with malice aforethought."

Under California murder law, Penal Code 187 (a), malice may be express or implied.
Express malice means that you specifically intend to kill the victim.  Malice is implied when: (a) The killing resulted from an intentional act; (b) The natural consequences of the act are dangerous to human life; and (c) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.4 Both first- and second-degree murder require malice.

Second degree murder:

Under California Penal Code 187, second-degree murder is also willful but is not deliberate and premeditated.

Voluntary manslaughter:

Penal Code 192(a) PC California's voluntary manslaughter law may be charged when you kill another person during a sudden quarrel or in the heat of passion. The difference (between first degree murder and voluntary manslaughter) is that voluntary manslaughter doesn't involve malice, since the killing is done spontaneously.

Involuntary manslaughter:

Prosecutors can charge you with Penal Code 192(b) PC California's involuntary manslaughter lawwhen you kill another person
  1. without malice,
  2. without an intent to kill, but
  3. with conscious disregard for human life.

"I don't think Mr. Ferrer is the person who killed Anderson-Jordet. This man killed Anderson-Jordet." Ferrer's attorney blames victim for his own death

His client has never taken responsibility. His client has never shown remorse. The defense case was tanking during testimony. So what does Juan Ferrer's public defender do?

In his closing, he uses derogatory language to describe Anderson-Jordet as "angry, drunk Doug", "homophobic" and "ill-tempered."

Ferrer's attorney, Mr. Marek Reavis put two photos of Douglas Anderson-Jordet up. One the smiling photo and one, the shadowy figure in a black trenchcoat captured in the video.

Testimony did not support the defense's self-defense theory,it did not support the homophobia theory, it did not support the "he fell on the knife theory" so what is left? Blame the victim. The defense did try to smear the victim in the preliminary hearing, and now it's more of the same.

Blaming the victim for his own death, when his own client in several versions admitted to stabbing the victim, is certainly a novel approach and in line with the insensitivity displayed throughout Ferrer's defense.

"Everything you say can and will be used against you, Everything you don't say can and will be used against you and everything your friend says and likes will be used against you" is how Mr. Reavis opened his closing remarks to the jury.

"Mr. Rees said he wasn't certain what happened because he wasn't there but yesterday, in his opening, he selectively distorted and made up stuff. Based on yesterday, we are in a different trial.I don't know what you heard."

"This is obviously a tragedy for Mr. Ferrer and his family, for Mr. Anderson-Jordet's family. His sisters were here a week for the trial. This is certainly devastating for them. Someone they loved and cherished died a thousand miles away."

"I've never talked to them. Under the circumstances that would not be appropriate. They have been led to believe that their loved one died at the hands of Mr. Ferrer."

"I don't think Mr. Ferrer is the person who killed Mr. Anderson-Jordet." Then Mr. Reavis pointed to the photo of Anderson in the black trenchcoat and said, "This is the man who killed  Anderson-Jordet."

"He didn't say some stuff, he yelled a tirade."

Then yelling "fucking faggot" and "fat bitch" at the jury, Mr. Reavis asked the jury if they would be alarmed if someone was yelling at them in a manner he just demonstrated. Mr. Reavis said these words provoked fear. "Mr. Ferrer did the right thing, for some period of time. That guy starts screaming."

Mr. Reavis described the victim as "drunk Doug", "angry Doug" and called him homophobic.

Then referring to a statement Mr. Rees made in his opening, that Douglas Anderson did not get to say hello to the jury like Ferrer, Mr. Reavis said, "Mr. Ferrer did not meet smiling Doug, he met angry, drunk Doug."

Referring to Dustin Holtz's testimony, Mr. Reavis was fine with the positive part of the testimony that Holtz gave for Ferrer but called the rest of it "a caca story."

"We don't know much about Anderson-Jordet but we know he is hateful and ill-tempered." No such evidence was provided by anyone's testimony. Even his ex, Virginia Jimenez who said that when drunk, Anderson could say some mean things did not say he was homophobic or hurtful, more like lashing out when he was hurt.

"There is one thing that Mr. Rees said in his closing that was correct, this was an accident," said Mr. Reavis.

I left at this point during Mr. Reavis' closing. I could not stay for Mr. Reavis' entire closing or Mr. Rees' rebuttal due to a medical appointment I could not reschedule. Many times I fill my media colleagues on anything they missed and sometimes we all help each other out. Today, I am very grateful they returned that favor.

 Mr. Reavis stuck with the fear and tragic incident claim, and asked the jury to consider the character of Juan Ferrer and Douglas Anderson-Jordet. 

Mr. Rees basically reiterated what he said in his initial closing in his rebuttal. He called Ferrer a liar and that the jury shouldn't believe anything he said during testimony.

There were a couple of points in the rebuttal worth mentioning.

Mr. Rees said to the jury, y"ou heard Mr. Reavis say this is a case about character. It’s not about character, it’s about the fact that he put a knife in Doug’s chest. He could have hit him instead of stabbing him.”


"The claim that this is an LGBT hate crime “is a distraction.”  Ferrer has been dating his girlfriend for seven or eight years and he compared me (Mr. Rees) to the girlfriend he had when he was 19. The LGBT defense “was concocted to blame the victim.”







May 13, 2015

"This is not a self defense case." "This is a violent punk night case."

After finishing the facts of the case, DDA Rees continued to demolish the self defense theory, the hate crime theory and the justified killing theory purported by the defense.

"This is not a self defense case. Doug never threw a punch at anybody. Doug was not physically aggressive with anybody. Dr. Super told you that the falling on the knife is ridiculous. Even the defense expert Terri Haddix told you this is not an accidental killing."

"What kind of case is this? This is a violent punk night case."

"Sophie did not like a status that said self-defense or stand your ground. She liked a violent punk kind of night" status on Nov 25." The facebook post then flashed on the screen. Sophie Rocheleau admitted to liking that post.

Then DDA showed all the incriminating texts between Nicholas Stoiber and Juan Ferrer that they jury had seen, these texts have been verified and the jury will have the texts during deliberations. DDA Rees referred to the "Dude, I am not trying to scare you but I 'm pretty sure lossy coast outpost is about us."

"What pacifist Buddhist uses terms like gangster and fam does not snitch?"

Then DDA Rees referred to the text, "Clear enough. No witnesses besides us. He did not know about the video. He did not know Ms. Brody had heard them. At no point did Mr. Stoiber or Mr. Ferrer say anything about self-defense or falling on the knife. They had 8 days to get their stories straight." he then referred to the text where they talk about getting together to talk but in person and not on the phone or the internet.

"His own grandmother said he told her he went back to the scene to check on Doug. That is the first opportunity he gets to explain himself. He lies about it. To his own grandmother. Doug was there. The police were there. "

"What is his testimony? She got everything right except the part the one bad part about me."

"He said, 'He wasn't attacked.' True. He said, 'I didn't have to defend myself.' True."

"He could have let Doug keep walking. He went up behind Doug and he engaged Doug.

"Without the excellent work by Detective Ortega and the Arcata Police Department, the defendant would have gotten away with murder."

"He didn't stand his ground. He didn't call 911. He didn't say I stabbed someone in self-defense."

"How did I begin my questioning of the defendant?" DDA Rees then flashed the same photo of a smiling Anderson. "Is this the man you killed on November 25? His answer was, yes."

"You know he killed Doug." Again, the photo. ""This is Doug. That is where he died. This is the guy that killed him."

Then DDA Rees held up easel signs of jury instructions he wanted to highliught to the jury. #359 about independent evidence. "You can determine if it is murder or manslaughter based on his statement alone."

#362 Consciousness of guilt which can be determined by false statements. #372 Defendant's flight. #371 Suppression of evidence.

DDA Rees then went over how testimony and facts and exhibits proved second degree murder and how this wasn't self defense. He had points listed from definitions and jury instructions.

"Safety could have been retreating. Doug yells at them. Doug is walking away. He is on his way home. He wasn't attacking them. There was no physical danger. This is a case of where you don't bring a knife to a fist fight. You don't bring a knife when you have two other friends that are willing to throw down with you."

"You cannot provoke a quarrel and then stab someone. California doesn't allow you to stand your ground, provoke and then stab someone. He used more force than neccessary. It was 3 against 1. Only physical ones were Sophie who kicked him, Nick who punched him and the defendant that stabbed him in the chest."

"Congratulations Mr. Ferrer, you killed a stumbling drunk."

"Self defense is not even a theory the defendant is putting forth to you. The theory is he fell on the knife. "

DDA Rees went through more of why it was not self defense, that there was no justification, and why it was not an accident.

He brought up how Ferrer had no remorse. "When his own attorney asked him how he felt and if he had any regrets about killing Doug" and brought up that Ferrer he talked about how the some of the staff at the jail supported him and how much support he had.

He asked the jurors to return with a guilty verdict on second degree murder.


"This is Doug. That is where he died. This is the guy that killed him. Those are the facts of the case."

DDA Roger Rees has been in control of the Ferrer trial from Day 1. He presented a compelling case to the jury backed by evidence. He decimated Juan Ferrer's credibility as well as that of the defense witnesses.

This morning, he presented an emotionally powerful closing argument accentuated with a power point presentation and photos of the victim, Douglas Anderson.

Ferrer's family members and friends were in court today as were friends and co-workers of  Anderson. His family has attended parts of the trial but since they live out of town and hope to be here for sentencing, depending on the verdict, they were not present today. Their absence only highlighted the loss of Anderson as DDA Roger Rees drove that point home over and over during his remarks to the jury.

Notable was the lack of attendence from Ferrer's former co-defendants and his girlfriend Sophie Rocheleau and friend Nicholas Stoiber.

"I've been thinking about this case for a long time, about what I would say to you. I tried to think of something new. There is only one way to begin, it is the same way I started this case. This is Doug (a smiling photo of  Anderson flashed on the screen). That is where he died (photo of the sidewalk where Anderson's blood and evidence markers could be seen and where his body was found). This is the guy that killed him. (Pointed to Ferrer.) Those are the facts of the case."

"The defense said (referring to a statement in Mr. Marek Reavis' opening), 'If you believe Mr. Rees story, you will find Mr. Ferrer guilty.' This is not my story. There are facts and evidence. You get to believe what you heard. What parts of evidence and testimony are reasonable and what part of evidence and testimony is unreasonable. Don't take my word for anything. You are the sole judge of facts." He told the jury that they could ask for transcripts and read back of testimony.


"He (Ferrer) got to hear testimony and get up and testify several times to explain several inconsistencies of testimony." Then DDA Rees showed jurors jury instruction #226 blown up on easel sized paper. The crux of that instruction: If you decide that a witness deliberately lied, you should consider not believing anything he or she said.

"Don't give his testimony any credibility. I won't go back through all his lies. You can ask for a read back."

"If you think his version is reasonable or the five or six versions from which you can cobble a reasonable explaination, then you have an easy job to do. You can go back to the jury room. Take a minute or two to pick a foreman, take another minute or two to fill out a not guilty form."

"You know what I am going to say. I consider his testimony unreasonable."

Mr. Rees then went into the facts of the case. What he said flashed on the projector screen.

"Doug leaves the bar sometime after 1 a.m. He is walking up H street. Ms. Rocheleau said they are tired of people throwing things at them and people picking on them. At 1:24, the first 911 call. At 1:30 the first officer arrives on scene. At 1:30, on officer's audio recording "he just stooped breathing."

"Sarah Brody testified that twice that she heard, 'Fuck you and your fat girlfriend.' She didn't hear faggot. She didn't hear fat bitch She heard a distinctly different male voice say, "I'm behind you."

"What's the reasonable inference? What is reasonable is that Doug is walking up H street, ahead of them. Defendant said, "I'm still following you." He must have looked behind. Defendant said, "Fuck you man."

"Ms. Rocheleau testified that Doug and the defendant faced each other when defendant punched him. You know it's not a punch. It's a stabbing motion. Ms. Rocheleau didn't demonstrate a punch, she made a forward motion. Deputy Harris showed you the motion and the defendant saying, "I stuck him to get past him." He also referred to Detective Chris Ortega's testimony about the hospital interview where the same thrusting motion is mentioned. And later defendant is heard describing it on an audio recording played by the defense.

"No one demonstrated a falling on the knife motion except the defendant."

"As he is fleeing what did the defendant say? From all his testimony, from all the recordings, the defendant does not say, I may have nicked him' he does not say, 'that he fell on the knife.' Whate he says is "I should get rid of this.' Why would you get rid of the knife if it was an accident? You would keep it to defend yourself. He wanted to "toss it" because it is the murder weapon.

Mr. Rees' closing referred to statements and testimony that the jury had heard and bringing up his questions, Ferrer's responses was very effective because it reminded the jury of key points he made. If you have been reading my detailed coverage of this case, you too will recall those statements. For an hour and half, DDA Rees had the jury's attention and they were watching Ferrer.

Here he is hours and days away from a verdict that can change his life and he was whispering away to his attorney while DDA Rees spoke. Not a sign of a remorseful or compassionate person.

Now that defense won the 995 motion in the Benjamin Carter case, can they file and win a Romero motion for Count 2

If Benjamin Carter accepted the People's offer , his attorney could file a Romero motion and if Mr. Acosta won that motion, Carter would face less time in prison.

From an Orange County criminal defense lawyer blog:

A Three (3) Strike Case is one where the Defendant has at least two (2) prior felony convictions which qualify as serious or violent felonies under Penal Code Sections 1192.7, 1192.8, and/or 677.5. Serious felonies refer to the conduct involved in the prior felony and are listed in Penal Code Section 1192.7 (c ). Violent felonies are enumerated in Penal Code Section 667.5 (c ).
When a Defendant has been convicted previously of at least two of these types of crimes he becomes eligible to be sentenced to a term in prison of 25 to life. A 25 to life term is not mandatory however. The judge has the discretion to "strike" (dismiss) one or more of the Defendant's prior serious or violent felonies.

You might ask why does a judge "strike" or eliminate a prior serious or violent felony? What does the judge look for in deciding whether to essentially save a Defendant from spending the rest of his life in prison? The courts have decided numerous cases in this area and basically have set forth the rule that the court in striking the prior(s) must not act contrary to the spirit of the 3 Strikes Law.Some of the factors the judge will look at are:

1. Defendant's current offense is not a violent felony.2. The punishment under the Three Strikes law is disproportionate to the severity of the current offense.3. The current offense is relatively minor.4. The priors stricken are not violent.5. Defendant's criminal history displays a lack of violence.6. Defendant's criminal history is not long.7. Defendant's criminal history is a result of the Defendant's addiction to controlled substances.8. Defendant's prior convictions all arose from a single period of aberrant behavior.9. Defendant was a minor participant in the present offense.10. Defendant displays remorse for his criminal conduct.11. Defendant has made restitution to the victim.12. Defendant is not deemed to be a danger to persons.13. Defendant demonstrates a willingness and ability to rehabilitate himself.14. Defendant was suffering from a mental condition that significantly reduces culpability for the crime.The above factors are not all of the things the court will look at but if your case falls into one or more of these areas then the chance that the court will "strike" one or more of your prior felony convictions becomes more likely. Because this is a somewhat gray area of the law, It's a perfect example of the defense lawyer's skill making all the difference.

Judge grants 995 motion in Benjamin Carter for Count 1, murder charge dismissed

"From pleadings, it appears that the people submit to defense motion regarding Count 1," said Judge John Feeney.

DDA Andrew Isaac indicated that was correct and so Judge Feeney granted the 995 defense motion and the murder charge against Benjamin Carter was dismissed. Carter is being represented by private attorney Michael Acosta.

"We appreciate that the People's acknowledgement regarding Count 1."

Judge Feeney said as to Count 2, the People are asking to reopen briefly to introduce evidence that the defendant is a felon with unlawful possession of a firearm."

"This is a classic 995 (a) motion," said DDA Isaac. He then gave Judge Feeney a a certified copy of Carter's complete criminal record.

Regarding Count 2, Judge Feeney said that the preliminary hearing was before Judge Dale Reinholtsen and that if to re-open Count 2, he would prefer to send it back to Judge Reinholtsen.


The defense and People stipulated that Judge Feeney could rule on Count 2 and defense stipulated to the certified copy of Carter's prior criminal history.



Judge Feeney ruled that "pursuant to Penal Code 995 (a), people will be allowed to re-open evidence of Mr. Carter's alleged prior record." Carter has four prior felony convictions. "The Court finds that there is sufficient cause to hold Mr. Carter to Count 2.

There is an offer by the People in Count 2.  DDA Andrew Isaac said today that if the "defendant plead to Count 2, admitted to that strike, he could move on."

 If Carter accepts it and pleads, he could get up to six years, Mr. Acosta told me after the court hearing. I spoke with Carters attorney, Mr. Acosta after the court hearing who said he will discuss the offer with his client. There is an intervention and a Bail/OR hearing scheduled tomorrow afternoon at 3:30 p.m. in Courtroom 1.

I was the only one in court to cover this today as well as the only one to report on the People's written opposition on May 4.

Previous posts:


May 4, 2015

People's opposition to defense 995 motion in Benjamin Carter's makes a reference to his email with Kym Kemp/ LOCO and shows he is in violation of law
Benjamin Carter is  charged with Count 1 Murder and Count 2 possession of a firearm in the death of Zachary Chapman. Mr. Michael Acosta is representing Carter.

There is a possibility that this case may resolve before a jury trial . At the last court hearing, the date of May 13 was set for Judge John Feeney to hear a 995 motion by the defense to dismiss Count 1 and Count 2. The defense filed that motion and the People have filed their response.

In the People's response, DDA Andrew Isaac said as to Count 1, the dense motion has merit. As to Count 2, the People object. "If no evidence was presented at the preliminary hearing regarding the defendant's status as a felon it was probably because the defendant's status as a felon four times over was understood. At this juncture, the Court can and should take judicial notice its own files reflecting the defendant's four prior felony convictions. Alternatively and more conservatively, the Court under Penal Code 995a should allow the People to reopen briefly to introduce a certified copy of the defendant's complete criminal record."

Citing cases and evidence to the Court, the People make a strong case for their opposition.

Also referenced in the People's motion is an email exchange Carter had with Kym Kemp when she was with Lost Coast Outpost in which he admits to being a felon in possession of a firearm which is a violation of the law.

Previous post (with links to other coverage of this case on the blog):

http://johnchiv.blogspot.com/2015/04/benjamin-carter-trial-date-vacated-995.html

Apr 20, 2015


Benjamin Carter trial date vacated; 995 motion to be filed by this Friday

A pre-trial conference for Benjamin Carter was scheduled in Courtroom 1 this afternoon. Carter is charged with the murder of Zachary Chapman. He is represented by Mr. Michael Acosta. DDA Andrew Isaac is prosecuting the case for the People.

Mr. Acosta made an oral motion to continue the trial for two weeks which was granted by Judge John Feeney after he heard from both attorneys.

"The victim's family is not happy but understanding," said Mr. Isaac. Mr. Acosta said that his client and family are not happy either.

Mr. Isaac requested that Judge Feeney ask Mr. Acosta to file a 995 by this Friday, which would give Mr. Isaac five days to respond to that motion. "One side or the other will bring a 995," said Mr. Isaac and it will be "dispositive."

The present jury trial date of April 27 and trial assignment for April 24 have been vacated. Mr. Acosta has until this Friday to file the 995 motion mentioned in previous posts.

Judge Feeney will hear arguments on the defense's 995 motion to dismiss on May 13 at 2 p.m. in Courtroom 1.

Before the case was called, DDA Issac and Mr. Acosta were talking back and forth and looking at paperwork. Carter kept glancing at his attorney and his family in the courtroom.

Looks like the Carter case may end up resolving before a jury trial.


Dispositive Definition:

  
A fact or point of law which brings about the settlement of a contested issue

Mar 25, 2015

Benjamin Carter "likely to resolve in two weeks" according to defense

This afternoon in Courtroom 1,Judge John Feeney ruled on the defense request for a dismissal for Count 2 in the Benjamin Carter case. He denied the defense motion to dismiss Count 2.

At the last hearing, Mr. Acosta had requested more time to file a 995 motion and demurrer to Count 2 alleging "lack of specificity of firearm." After reading the People's objection and reviewing the defense motion, Judge Feeney said that he was going to deny the defense motion because the arraignment on information "refers to the shotgun as a firearm."

Mr. Acosta told the Court that he filed the demurrer "because Mr. Carter wanted to make sure what he was pleading to and that the jury might be confused by the physical evidence and which firearms he possessed."

 In court, Carter's defense attorney, Michael Acosta said "this case is most likely to resolve in two weeks."

After the court hearing, Mr. Acosta spoke with me and Will Houston from the Times-Standard. I have covered most of what Mr. Acosta said  in my previous posts which you can access via the link below including an exclusive on the defense offer.

Trial was confirmed and jury trial is currently scheduled for April 27. Trial assignment is April 24 at 8:30 and Trial Readiness on April 20 at 2 p.m. in Courtroom 1. The case is being prosecuted by Mr. Andrew Isaac.

Previous post (with other links to posts on this case):

johnchiv.blogspot.com/2015/03/benjamin-carter-new-trial-date-of-april.html