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By PORAC | July 1, 2016 | Posted in PORAC LDF News

Former Indio Officer Acquitted After Jury Trial

Castillo Harper, APC

Following an extensive foot pursuit of a known and dangerous gang member after a domestic violence call, former Indio Police Officer Gerardo “Jerry” Martinez was charged by the Riverside County District Attorney’s Office with a misdemeanor violation of Penal Code Section 32, accessory after the fact. The accessory charge was in relation to his co-defendant’s (former Indio Police Officer Charles Holloway) charge of felony Penal Code Section 149, assault under the color of authority. Martinez was represented during the course of his case by attorneys from Castillo Harper, APC, including Partner Kasey Castillo, Associates Nicole Naleway and Tara Collins, and ultimately, Partner Steven Sanchez.

Heading into the preliminary hearing, Attorney Castillo met with the supervising district attorney handling the case multiple times, explaining the legal issues with such an accessory charge. The SDDA failed to listen, and once it was clear Martinez was not going to take a plea deal, added two new charges against Martinez on the morning of the preliminary hearing: a felony charge of perjury (Penal Code Section 118) and a misdemeanor charge of filing a false police report (Penal Code Section 118.1). At all times, Martinez, who has steadfastly maintained his innocence, rejected any plea bargain, even when faced with the two new, additional charges. The judge who heard the preliminary hearing bound Martinez over for trial, but indicated that he would not be making any “factual findings.” Castillo Harper, APC quickly drafted a Penal Code Section 995 motion to dismiss, seeking to have the holding order as to all three charges set aside, and began to prepare for trial.

A week before the start of trial, the Riverside County District Attorney’s Office dismissed the misdemeanor Penal Code Section 32 charge “in the interests of justice.” It was what we had advocated all along — that it was legally impossible for Martinez to have been an accessory after the fact in this case.

During pretrial motions and immediately prior to jury selection, Attorney Sanchez argued the Penal Code Section 995 motion. Martinez had been charged with perjury based on statements made in his probable cause declaration to support the arrest of the subject for the misdemeanor violation of Penal Code Section 148(a)(1), resisting arrest. The prosecution alleged that Martinez lied under penalty of perjury for writing that the suspect was “arrested with no further incidents.” We argued that Martinez, in fact, made a true statement, because after handcuffs were placed on the suspect and he was arrested, there were no further incidents. The prosecution argued that “arrested” included the entire contact, including the process of the officers struggling to gain control of the suspect before he was eventually secured and handcuffed.

After the motion, the judge thankfully agreed with our position and dismissed the most serious charge against Martinez, agreeing that the felony perjury charge had no place in this case. Now, with two of the three charges dismissed, Martinez faced only the misdemeanor charge of writing a false police report, a violation of Penal Code Section 118.1. The basis for this charge was the fact that Martinez had written that Holloway had “assisted” him in the arrest of the suspect, and he had failed to describe any uses of force by Holloway.

Central to the prosecution’s case was a restaurant surveillance camera that caught the tail end of the pursuit of the suspect. What the video didn’t capture was even more telling. On September 12, 2014, Officer Martinez was twice dispatched to a residence regarding the suspect disturbing a family at 4:30 a.m. The suspect was a documented Varrio Coachella Rifa (VCR) gang member with the moniker of “Convict.” During the disturbance, the suspect demanded to see his ex-girlfriend, and her parents refused. He proceeded to bang on doors and windows, with his pit bull in tow.

Indio Police Officers Martinez and Holloway, as well as a third officer, were tasked with trying to contact the suspect for questioning. When Martinez encountered the suspect, he commanded the suspect to stop. The suspect refused, and the chase was on. The suspect led the officers on a five-block foot pursuit, over walls and fences and through dark alleyways behind several businesses. Chasing an unknown and potentially violent suspect, the officers were fatigued and running out of breath. The supervising sergeant testified that he believed the officers were going to “gas out,” and that he could hear desperation and fatigue in their voices over the radio traffic.

After the 5- to 6-minute foot pursuit ended, Martinez came face to face with the suspect behind the Pueblo Viejo Grill, in view of the surveillance camera. He ordered the suspect to the ground several times, to no avail. It was later determined that the suspect also had two active felony warrants, including one for assault with a firearm. (The suspect is now doing 23 years in state prison.)
Martinez knew the suspect, who had already fled, would continue to look for his next escape route, and his actions were indicative of someone who would also not hesitate to fight. As a result, Martinez drew his wooden baton and displayed it in an attempt to get the suspect to submit to his commands. Likely sensing he was out of options, the suspect went to the ground.

According to the video, just as Martinez approached the suspect on the ground, baton still in hand, Holloway came around a blind corner in order to help Martinez take control of the suspect. While Martinez’s left knee was on the suspect’s lower back in an effort to prevent his escape, Martinez focused on the suspect’s still unsecured and resisting hands. Simultaneously, Holloway applied distraction strikes to the suspect to help gain his compliance.

In trial, the prosecution’s use-of-force expert, Sergeant Dan Marshall, who was also the Department’s sergeant in charge of training and assigned to Internal Affairs, testified that in this scenario, Martinez was the contact officer and Holloway would have been the cover officer. Sergeant Marshall repeatedly stressed that the contact officer’s job is to secure the hands of the suspect in order to quickly and safely handcuff him. He further testified that the cover officer’s responsibility is the safety of the contact officer. As such, it made perfect sense that Martinez would not and did not see the distraction strikes used by his partner. When tasked with the arrest of a violent and resisting gang member, no competent officer should ever lose sight and focus of that dangerous suspect by focusing instead on the actions of the cover officer who is there to protect him. Holloway was the least of Martinez’s concerns.

However, the prosecution argued that the omission of Holloway’s distraction strikes from Martinez’s police report constituted a false report, since the Department’s Lexipol policy requires any use of force to be documented. There were two main statements in Martinez’s report that the prosecution argued were false: first, that Martinez’s statement “Holloway assisted me in arresting the suspect” was false, and second, that his statement “The suspect was arrested with no further incidents” was also false. However, the supervising sergeant testified that Holloway applying distraction strikes did, in fact, assist Martinez with the arrest of the suspect, and that his writing was, in fact, a true statement. The jury agreed. Further, it was established in the trial that a suspect is arrested once he is secured and handcuffed. Video evidence conclusively showed that no force was applied to the suspect after his arrest.

In the end, the prosecution could not convince the jury that Martinez filed a false police report, even by way of omissions. PORAC LDF allowed Martinez’s attorneys to meet with and utilize the services of a renowned video expert, which helped with the presentation of numerous factors used to prove that Martinez did not see the distraction strikes, such that if he had, he would have documented them. While the camera’s view was illuminated by a nearby light bulb, the officers dealt with a much darker reality on the ground with the resisting suspect. Martinez was also fatigued from the struggle and can even be seen on video listening intently to his radio earpiece to try to learn fellow officers’ location for backup support. To complicate matters at that point, having lateraled from another agency, Martinez had only been with Indio P.D. for seven months and was unfamiliar with his location. Trying to give his location and listen to busy radio traffic caused him to stare into the direction of the camera in obvious concentration, all the while trying to cuff a dangerous and resisting suspect. With all these distractions, it was obvious why the jury acquitted him of intentionally omitting anything from his report. Interestingly, it was discovered during the course of the trial that Sergeant Marshall had received the video in question two days before Martinez wrote his report and never once offered the video to Martinez such that he could 1) mention it and its contents or 2) refresh his memory in the writing of his report. Indeed, Sergeant Marshall also never advised Martinez’s supervising sergeant about the contents of the video, either before or after the supervising sergeant approved the report. A simple discussion about the video could have potentially eliminated two years of agonizing misery for Martinez, who would have gladly written his report to include reference to the surveillance video for a complete incorporation of the events that day. Despite Sergeant Marshall testifying that, as the training sergeant, if he had information to make the officer’s report more complete and accurate he would not hesitate to make that officer aware so that the new information could be included, in this case we know that to be untrue.

Ultimately, the jury deliberated only two hours before returning the not guilty verdict. Martinez is grateful to his attorneys at Castillo Harper, APC for their hard work and unwavering faith in him and this case. He is also appreciative of PORAC LDF for all of its support and legal assistance during this two-year ordeal.

About the Author

Steven Sanchez is the partner in charge of the Criminal Defense Division at Castillo Harper, APC.