TEEN JAILED FOR FIVE MONTHS DUE TO POLICE ERROR – P.C. 186.22; P.C. 245(A)

On November 11, 2010, prosecutors dismissed assault and gang charges against Emmanuel Martinez in the middle of trial after discovering that police mistakenly believed that an eyewitness told them that Martinez was the perpetrator.

On June 1, 2010, a woman called police after a man flashed gang signs at her and threatened her with a knife outside her apartment.  When police arrived, they gathered several suspects and presented the woman with a three person lineup.  Martinez, who was in the same apartment complex at the time, was detained, placed in the lineup, and arrested.

Martinez declined bail and had been in custody since his June 1 arrest.

A police officer testified at Martinez’ preliminary hearing that the woman, who was in a police vehicle about 25 feet away from the lineup, told him that Martinez was the perpetrator.  Another officer testified that Martinez was a current and active gang member.

Three months after the preliminary hearing, Martinez’ attorney, a deputy public defender, discovered a police audio tape recorded during the lineup which clearly indicated that the woman pointed to another person as the perpetrator, not Martinez.

Charges against Martinez were dismissed and he was released from custody after prosecutors learned of the police error.

Under Penal Code section 245(a)(1), a person who threatens unlawful bodily harm on an another through the use of a deadly, non-firearm weapon is guilty of assault with a deadly weapon.  Assault with a deadly weapon is punishable as either a misdemeanor or a felony, meaning that punishment ranges from a fine and/or up to a year in jail, to up to four years in state prison.  (P.C. 245(a)(1).)

Under Penal Code section 186.22(a), a person who participates in a criminal gang is guilty of a misdemeanor or felony.  Punishment ranges from a fine and/or up to a year in jail, or up to three years in prison.  Crimes committed for the benefit of a gang are also subject to gang sentencing enhancements.  (P.C. 186.22(b).)

If you have been accused of an assault or a gang crime, it is imperative that you do not talk to the police: statements made after waiving your Miranda rights can be extremely damaging to your case.  Instead, communicate to the police or the prosecution through your Orange County criminal defense attorney.  Also, if you have or can obtain the means, it is highly encouraged that you retain a private attorney:  public defenders are often burdened with overwhelming case loads and may have inadequate resources to provide for your defense.

For over 40 years, the attorneys at Wallin & Klarich have helped people accused of a variety of serious crimes, including assault and other gang crimes.  When facing these serious charges, it is important to have competent and experienced legal representation who will diligently review the evidence for any possible defenses.  Call us today at (888) 280-6839 or. We will be there when you call