When a courthouse hack complains of a slow news week, it doesn’t mean nothing important happened. What it means is that all the drama that makes interesting reading happened behind the scenes. It means trials were cancelled in favor of plea bargains, and that all the witnesses sitting around waiting to give evidence in preliminary hearings were sent home because the defendants decided to waive their right to trial.
Defendants have a right to have these hearings in a timely fashion, but their lawyers convince them that it is in their interest to postpone the inevitable; often as much as a year or more will pass before a case is resolved. Meanwhile many defendants remain pre-trial in jail if they can’t make bail.
The case of Ana Gabriela Fierro, 23, of Willits, was such a long-haul case that was finally resolved last week. On January 4th of 2013 (two years ago now) Ms. Fierro was arrested for gross vehicular manslaughter and driving under the influence. The victim was Robert Tymn, 34, of Covelo. He was Fierro’s passenger.
The CHP posted their version of that disaster on January 7th, 2013, reporting that Fierro was headed east on Highway 20 about five miles west of Willits when, just before 9pm on January 4th, chemically impaired and driving at "a high rate of speed," she lost control of the vehicle. The 1990 Buick sedan Fierro was driving spun into the on-coming lane where it was struck on the passenger side by a 2005 Toyota Tundra driven by Loren R. Johnson, 38, of Fort Bragg.
Mr. Tymn died at the scene. Ms. Fierro was flown to Santa Rosa Memorial Hospital and later arrested. One of the passengers in the Toyota Tundra was taken by ambulance to Howard Memorial Hospital, but two children in the truck were uninjured.
Many months later, May 14th of 2014, Ms. Fierro was re-arrested on amended charges — suspicion of vehicular manslaughter in commission of an unlawful act with gross negligence.
The DUI was dropped because there is one intoxicant out there, nitrous oxide, which leaves no trace for proof in the blood. More commonly called laughing gas, this stuff is highly popular with the drug sectors of the population, and the canisters it comes in can be found scattered all up and down the highways and byways of our scenic coastal paradise. Hitch-hikers come across vast cashes of these spent cartridges, little metal gas cylinders, which come in boxes of several dozen or more; the boxes are decorated with erotic images.
A number of these cylinders were found in Ms. Fierro’s Buick. Her defense was that she was trying to get away from a party of guys who were high on the stuff. Young people call them “whippits” because they supposed to be used for recharging whipped cream cans. Ms. Fierro said she was in a state of panic when she lost control of the car. At her sentencing last Friday it became apparent that her alleged pursuers didn’t arrive on the scene until quite some time after the crash.
Until the day of sentencing none of this was made public for the very good reason that if the public found out how many people are out there driving around gassed out of their minds and totally absorbed in porn videos on their smart phones and/or sexual fantasies — if not acts — they would never get in their vehicles and drive anywhere again.
The only reason there was any mention of the gas cylinders at the sentencing was because Ms. Fierro’s lawyer, Carly Dolan of the Office of the Public Defender, had to say something to mitigate Deputy DA Beth Norman’s determination to put Ms. Dolan’s client away for a year, despite having previously agreed to a suspended sentence.
Judge Ann Moorman said she had received and read the probation report and recommendations along with several letters in support of Ms. Fierro. Prosecution and defense had stipulated to two years and eight months in prison, to be suspended, but now probation and prosecution wanted a year in jail — a bullet, as it’s called in courthouse slang — plus five years of probation with gratuitous terms of probation that had nothing to do with the charges, such as no consumption of alcohol or going to places "where alcohol is the chief item for sale.”
Ms. Dolan objected, and rightly so. Probation officers are becoming increasingly sanctimonious and more and more often seem to think they're in charge of dispostion. Lots of low-level offenders are being released from the prisons and jails under realignment and Proposition 47, and placed under their supervision. Judges tend to go along with whatever probation wants.
“The alcohol clause in the probation terms is not relevant to her,” Dolan said of her client.
“Yes, but I like to let Probation have that discretion,” Moorman answered.
Ms. Fierro seem so devastated by the awful turn her life had taken that she was more than willing to enter a convent if it would help expatiate her crime.
“Ana has been extremely remorseful,” Dolan said, “stoic, even, about her punishment, and will continue to punish herself the rest of her life. I therefore think it would be more beneficial to get her into some kind of counseling, rather than punish her with a year in jail.”
Fierro had been evaluated by Ukiah psychologist, Dr. Kevin Kelly, who agreed with the counseling and suggested that Fierro was perhaps being overly hard on herself.
Ms. Norman, however, thought Probation was right about more punishment for the defendant. “Ms. Fierro doesn’t remember driving recklessly. And the people she hit said the people who were supposedly chasing her didn’t arrive for quite a while. The whippits were in the car and The People cannot prove she was doing it because it leaves the system so quickly, but the people she’d been with, they were all doing it. So I’d say she should get at least 180 days in jail along with the five years probation, though I wish her well, and the people in the car she hit said they didn’t want to see her go to jail … unless, that is, she ever did anything like that again; and then there would be no limit to how long they’d like to see her put away for.”
Dolan said, “I don’t see how putting her in jail will increase her awareness of what she’s done.”
Moorman said, “The concern I have is the same as Ms. Norman’s. You are too easily influenced by other people and in this case you were in bad company. You need to learn to assert yourself and not go along with others so easily, Ms. Fierro. So I want you engaged in some kind of counseling as a part of your probation. This was a horrible event. Someone lost their life and others were injured. But there’s a difference between taking responsibility for what you’ve done and being totally swept away with regret; you’ve become overwhelmed by it.”
“I know what I did is unforgivable,” the weeping Fierro said.
“I’m not the one, ultimately,” Judge Moorman said, “who does the forgiving. Now, with respect to jail: One reason I send people to jail in a case like this is to send a message to the public. But I also send people to prison or jail to punish them. In this case I’m not concerned that you are going to go get a bottle and get drunk and drive out and kill someone, but, well, as per the terms of the agreement, I’m going to impose the mitigated term of two years and eight months, suspend the execution of the sentence and place her on probation for three years… And I’ll impose the 180 days in jail, with 30 days credit for time served. I’ll suspend the $4,000 victim restitution fine, but there is a Vehicle Code fine in the amount of $2,300, and $80 security fee, a $40 conviction fee and a $20 construction fee [for the new courthouse [everyone has to pay this, regardless of the crime]. When do you want to go to jail, Ms Fierro?”
“As soon as possible,” the defendant whimpered.
“Okay, let’s make it Monday, the 26th at 2pm. You can turn yourself in.”
“Thank you, Judge Moorman.”
* * *
Moorman quickly picked up the next file.
“What about Delilah Knight – or should I say Delilah Smith?”
“She goes by both, you honor,” Public Defender Dolan said.
“She’s here on a variety of cases, I see.”
“Yes, she was OR’d at the time of her plea and since her release she’s been doing good, trying to get a bed at Ford Street.”
Ms. Knight, AVA readers may recall, was part of a criminal ring that used fingernail polish remover (acetone) to alter and pass checks from a variety of Ukiah banks and credit unions, along with smashing out car windows to steal credit cards. Additionally, there were shoplifting excursions to Walmart and Friedman’s. Under Proposition 47, the members of this informal little gang had their charges reduced to misdemeanors, and were released from jail.
Deputy DA Norman was unsure what to ask for in Ms. Knight’s case. Prop. 47 has taken a bite out of the law and Norman must have felt like a toothless and neutered old watchdog reduced to a lapdog.
“Do you trust me to craft something appropriate,” Moorman asked. Okay, I’ll revoke probation and sentence her to 20 days custody, deem the probation unsuccessful and terminate it; then I’ll place her on summary probation with the usual conditions — the standard fines and fees suspended, if the probation is successful — and I’ll order a 90 day residential treatment program at Ford Street. As for the $327 restitution, it was an attempt to pass a check that wasn’t successful — excuse me!”
The judge jumped up and ran into her office, bustling back up onto the bench carrying additional pages.
“Ms. Dolan, can you propose a come-back date to see how she’s doing?”
“How about February 5th at 9am?”
“That’ll be fine — wait a minute, is this the donut caper?”
“It is, your honor.”
Everyone chuckled politely.
“Okay, Ms. Knight, you’re to stay away from Sonny’s Donuts.”
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