Contra Costa County Superior Court Judge Gregory Caskey ordered four men and one juvenile to stand trial on charges of felony gang rape and assault of a Richmond High School student. A sixth defendant will be tried on a different felony sexual offense related to touching the victim.
The judge dismissed all charges against the seventh and youngest defendant, 16-year-old Cody Smith. The rulings end a 20-day preliminary hearing that uncovered gruesome details about the attack on a 16-year-old girl in the courtyard at Richmond High in October 2009. Five defendants face life sentences if convicted of the rape charges against them.
Caskey decided there was insufficient evidence for the rape charges against 23-year-old Elvis Torrentes. He now faces a maximum of eight years in prison, down from 26, for one charge of sexual penetration of an intoxicated person.
Senior Deputy District Attorney Dara Cashman said this was the most complicated case of her career. “Not just because the number of defendants, but also the huge amount of evidence, the forensic evidence was extremely complicated, and the fact that the witnesses were so very uncooperative,” she said outside the courtroom after the hearing.
“If there is a murder in hell, you’re not going to have angels as witnesses,” Cashman said during her concluding argument.
The witness testimony and evidence implicating Cody Smith in the rape were particularly thin. The judge suppressed a police interrogation of Smith on Monday. He ruled police violated Smith’s Miranda rights during an interview two days after the assault, when they continued to question Smith after he invoked his Fifth Amendment right against self-incrimination.
It is unclear whether, even if Smith’s statements — part of which the judge described as ambiguous — had been admitted, the turnout would have been any different.
The prosecutor argued that Smith — who was a classmate of the girl and has known her since seventh grade — had sexually assaulted the student and encouraged and promoted others’ criminal behavior.
Cashman said Smith “was under no obligation to help, but he can’t escape criminal liability by saying he left before it happened.” Even if Smith left before the assault ended, Cashman said he was there when it began. She argued that Smith aided and abetted the rape because it was a natural and probable consequence of the events that he had helped put into motion, which would make him culpable according to the law.
Smith’s attorney, David Headley, said that of the nearly 20 witnesses and defendants interviewed by police, most said Smith hadn’t done anything to the girl or that he wasn’t at the scene when they were. Only one witness said Smith had touched the student sexually, and Headley argued that police had pushed that witness into agreeing with that account.
“The code of silence didn’t operate in this case as one might expect,” said Headley. ”No one seems to be protecting anyone here.”
“If you are going to dump on anybody, you’re going to dump on ‘the little white kid,’” Headley said, referring to how one witness had described Smith.
Before making his decision, Caskey highlighted the difficulty of trying to resolve conflicting witness accounts. “The dilemma I face in this case is I have very little ability to assess credibility in this proceeding,” he said.
The judge said it appeared that Smith invited the girl to join him and some friends drinking alcohol in the courtyard. “I don’t believe there was a plan,” Caskey said. “That he [Smith] lured her over, I absolutely don’t believe that.”
Neither did the judge believe that Smith had behaved properly. “His conduct that night can only be described as horrible,” Caskey said.
“Your client is a thief, not immune for doing what he wants for his own self-interest,” Caskey continued. He said it appeared that Smith stole the brandy the group was drinking, took the girl’s phone (police recovered the phone in Smith’s bedroom), and was likely bragging about getting the girl drunk.
But the judge concluded that he could only hold Smith “responsible for his legal conduct rather than his moral conduct.”
Smith’s family sighed and some broke into tears when the judge dismissed the rape charges. Smith’s father said he was going to take his son out to eat when he was released later that night.
Outside the courtroom, Cody Smith’s older cousin Desirae Smith — who said she helped raise Smith — said, “I’m so happy. I didn’t think we had a chance with the way the DA [was handling the case].” Desirae said Cody used to watch SpongeBob SquarePants and Pokemon. But in the 14 months Smith has been in county custody, she said, “he’s a smartass now. Before he wasn’t.”
The family of Elvis Torrentes did not wish to speak to reporters, but his attorney, Cecily Gray, commented on the judge’s decision to drop the two rape charges against her client. “I think we’re very content,” she said. “I’m pleased my client is not being held liable for the conduct of other people.”
Of the remaining charge against Torrentes, Gray said, “it’s really a trial issue about whether there was actual penetration or just fondling.”
Defendants Ari Morales, 17, and Marcelles Peter, 18, are charged with rape by foreign object while acting in concert — Morales for allegedly inserting the antenna of a walkie-talkie into the girl and Peter for penetrating the girl with his finger. A second-degree robbery charge against Morales for taking the girl’s ring was dismissed.
Defendants Jose Montano, 19, and John Crane Jr., 44, are two of three defendants being charged with having intercourse with girl. They face charges of forcible rape while acting in concert.
Defendant Manuel Ortega, 20 — who was most implicated throughout the 20-day preliminary hearing — is charged with second-degree robbery for allegedly stealing the girl’s necklace, assault with force likely to result in great bodily harm, forcible rape while acting in concert, penetration by foreign object for allegedly trying to penetrate the girl with a skateboard, and oral copulation while acting in concert.
Kidnapping charges against Ortega and Montano were dismissed.
Cashman, the prosecutor, said that there were other people who should be in court and she wished they were, but the defendants before her in court all deserved to be there. Asked to comment on Caskey’s ruling, Cashman said, “There is nothing about this decision that lessens this case or the injuries against the victim.”
Cashman is unlikely to be the prosecutor at trial because she’s soon retiring from her post as senior deputy DA and head of the sexual assault unit.
The case will continue with a second arraignment in Contra Costa County Superior Court in Martinez on Jan. 10, when defendants will re-enter their pleas.