May 13, 2015

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):

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):

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