Visiting Judge Robert Crone had read the attorneys' pleadings. The preliminary transcript had not been provided to him so with agreement, he will rule on the 995 motion this Friday at 8:30 a.m.
Count 1 murder with special allegation that he was an active gang participant at the time and the murder was committed to further activities of the criminal street gang.
The oral arguments were excellent by both attorneys.
Nunez's attorney, Mr. David Celli said, "The case as prosecuted was delayed by 14/15 months. Law enforcement proceeded on a theory; at least initially by an anonymous letter. They charged 4 individuals." Mr. Celli then brought up the resolution of the case for one of the other suspects, Nicholas Leigl. "There is a limited pathway to get to murder for Mr. Nunez. We only have Carolyn Snow, who did not place Mr. Nunez in any way. There was impeachment regarding Carolyn Snow's testimony. The other testimony was by Michael Grant. Circumstances are that he negotiated a release on a current charge. His initial statement was a narrative. Detective Harpham said that he was unable to reconcile Grant's account with his investigation."
"I don't believe we have reached sufficient cause on any theory," said David Celli. "The Court needs to decide if there is enough evidence to proceed to trial."
"Regarding the gang enhancement, there is developing law in the area," said Mr. Celli. He went on to say that is the Court finds there is evidence to proceed to the trial with the homicide charge; the allegation against Nunez is that he is a member of the Sureno gang. "During the cross examination, the 18th Street was more prominent." Mr. Celli said that Leigl was identified by the People as a member of the 18th Street gang. "So, the People cannot say there was a conspiracy between Sureno gang members. There is no relationship between the subsets 18th street gang and Surenos."
Mr. Celli said Nunez's past crimes did not have any gang related charges. "Being a gang member in itself is not illegal. The People have to show criminal activity."
"Nobody saw what happened, only sounds of thuds heard, no voices to identify
parties," said Mr. Celli. "Mr. Grant and Mr. Burgess are also gang members. That was not explored by law enforcement."
Deputy District Attorney Luke Bernthal said that Carolyn Snow's "out of court ID was offered a s impeachment; not as proof. That statement was not wrong. Impeachment in California is offered for the truth of the matter. In a prelim you have 115. You can take Carolyn Snow's out of court statement to hold for probable cause."
Regarding the argument on the gang enhancement, Deputy DA Bernthal said, "There is some confusion on part of the counsel. Offenses don't have to be gang related; they just have to be committed by a gang member."
Bringing up a case that Mr. Celli cited in his oral argument, Deputy DA Bernthal said, "The record in this case is different from the circumstances in Prunty. Here each of the three codefendants is identified as a Sureno gang member. It doesn't matter if Leigl is or is not a member of the 18th Street gang."
"Three people show up at the same time to kill a child," said Deputy DA Bernthal.
The case started out with four suspects. Nicholas Leigl plead guilty. Joe Olivio III's cases maybe tried in juvenile court. Three co defendants remain. If Nunez's 995 motion is granted, that will leave two co-defendants, father, Joe Olivio Jr. and son, Olivio III.
"No other media was in court.