Bike Roulette On Mendo Roads

Gabriel Ray, the young man who mowed down five bicyclists on the Old Ukiah Road between Hopland and Ukiah last winter, has been bound over for trial after a lengthy preliminary hearing.

The multiple counts of Penal Code 245, assault with a deadly weapon other than a firearm, along with misdemeanor charges for driving under the influence, and nine special allegations were all sustained and will, if Gabriel Ray is convicted at trial, result in five felony strikes right off the bat.

At age 18, Mr. Ray is looking at life in prison.

Defense attorney Andrew Martinez argued that it was not the legislature’s intent that automobiles should be regarded as deadly weapons under the assault statute.

“I think if you applied it to a ball bat it might work, but not here.”

“When you and I were young lawyers just starting out,” Judge Behnke reminded Mr. Martinez, “I think it was District Attorney Joe Allen, in 1980, who first charged someone with vehicular murder — before that, all these DUIs that resulted in fatalities were charged as manslaughter. And we recently had a jury trial that resulted in the same charges that are being filed in this case.”

The judge was referring to the Joan Rainville case. Ms. Rainville was the first to be charged since Joe Allen under Penal Code 245 with a vehicle alleged to be the deadly weapon. Ms. Rainville, a repeat drunk driver, had crashed her mother’s car through a fence into a neighbor’s Memorial Day barbecue. But she was so extremely drunk she might have been piloting a Boeing 707 for all she knew and, therefore, was in no condition to form an intention to deploy Mom's car as a weapon. Ms. R was sentenced to years of probation and much time in the Mendocino County Jail. A bookish, older woman with a nearly fatal penchant for combining alcohol and locomotion, the humane sentence spared Ms. R the non-rehabilitative ordeal of the state prison system.

Judge Behnke said he didn’t know how such a case would come out on appeal, but Joan Rainville had waived her rights to an appeal in order to avoid state prison. Andrew Martinez, young Mr. Ray's attorney, didn’t appear likely to waive anything. If the prelim was any indication, Martinez will challenge every prosecution assertion to get young Mr. Ray out of his legal difficulties.

The proceedings against Ray began with the submission of the medical records of the five victims by Deputy DA Josh Rosenfeld.

CHP Officer John Heinke, the crime scene investigator, then took the stand. His evidence proved to be of a highly technical nature and, as these things go, resulted in long, drawn-out descriptions of ordinarily simple things. Skid marks, for instance, were called “tire friction marks” or TFMs.

Officer Heinke had taken a Google Map of the crime scene on Old River Road and overlaid a Microsoft drawing app to produce a “factual diagram” into which the location of the car and the five rear-ended bicycles were placed, along with the TFMs for each, which had all been measured with a roll meter. The factual diagram was entered as People’s Exhibit number one, and copies were made for everyone except the press, as always the unwanted stepchild at the courtroom family reunion.

Officer Heinke explained the symbols on the diagram: “Item E is the fog line. It is 10 feet between the east-side fog-line and the west-side fog-line. Item F is a bar-ditch, nine-inches to one-foot deep. Item A is the roadway edge, where the asphalt ends and turns into dirt. Item [?] is the double-yellow line. Item B1 represents the vehicle that was the cause of the accident.”

Martinez: “Objection, Judge, I want that last part struck from the record.”

Behnke: “I’ll strike ‘the cause’.”

Heinke: “Items six and seven are the tire friction marks made by the vehicle — seven for the TFMs on the pavement and six for the TFMs on the roadway edge and in the dirt.”

Deputy DA Rosenfeld, in a vain attempt to cut to the chase: “Officer Heinke, what is your opinion as to what caused the tire friction marks?”

Martinez objected, saying Officer Heinke’s opinion wasn’t credible since he was merely an accident scene investigator with years of experience. Judge Behnke allowed Martinez to take over and “lobby” the witness, and Martinez proceeded to attempt to ferret out Heinke's shortcomings and his alleged lack of experience and training.

Martinez: “Did you see these tire friction marks being made?”

Heinke: “No. They were there when I arrived.”

Martinez: “Do you happen to know what an Accident Reconstruction is?”

Heinke: “Yes.’

Martinez: “Have you worked a traffic accident scene where a Major Accident Reconstruction Team has been brought in?”

Heinke: “No.”

Martinez: “What are you trained to do as an accident scene investigator?”

Heinke: “To investigate the scene.”

Martinez: “Are you trained to determine the speed of the vehicle by the TFMs?”

Heinke: “No. There’s too many variables that I haven’t been trained in, such as the weight of the vehicle, the type of braking system, and other things like that.”

Martinez: “So, your job is to collect evidence, not to give opinions, isn’t it?”

Heinke: “Yes.”

Rosenfeld: “But as to determining the primary collision factors, you are trained in that, aren’t you?”

Heinke: “Yes, I am.”

Rosenfeld: “Are you trained to look for other factors, as well?”

Heinke: “Yes.”

Rosenfeld: “Are you trained to give an opinion in that?”

Heinke: “Yes.”

Rosenfeld: “Then I’m going to ask the question I asked before, more specifically; where does TFM number six begin and where does it end?”

Heinke showed the two points on his diagram to those who had copies of it. Those of us without a copy waited like children excluded from adult conversation. It took almost half an hour for the high-tech Q&A to boil down to where Officer Heinke could finally say that the skid marks were 346 feet long for TFM number six. This kind of thing went on and on, as the skid marks for each bicycle were subjected to the same rigmarole.

Basically, the kid had inexplicably plowed into a group of bicyclists on the side of a straight stretch of the road. One would assume it was an accident. But he had been drinking and his post-collision behavior hadn't been what anyone might describe as gallant.

The time-consuming tedium and delays were caused by defense attorney Martinez’s niggling objections to every little detail of the testimony. Even when overruled, Martinez continued to cavil and gripe, obstructing progress, in effect, until the judge had finally had enough.

Behnke: “I think the officer’s training and experience is sufficient, counsel, to essentially just go ahead and connect the dots, if you will, between the skid marks and the bicycles laying there on the side of the road. And it’s his opinion of where the impact occurred, I get that. But he’s allowed to render an opinion. I appreciate that there’s some areas where he’s not allowed to testify, but we’re going in a circle here.”

Rosenfeld: “I can get to the heart of the matter very quickly, your honor. Officer Heinke, are the TFMs of Vehicles numbered one, two, three, four and five consistent — in your experience and training — with an impact from a force from the rear?”

Martinez: “Objection, compound, calls for speculation, outside the—”

Behnke: “Overruled.”

Finally, we were able to learn that bicycle number one (the first one hit) skidded 287 feet; the second, 264 feet; the third, 261 feet; the fourth, 105 feet; the fifth, 72 feet.

Clearly they'd been pedaling in a loose line, and clearly they'd been hit hard from behind.

Rosenfeld: “Nothing further.”

Martinez on cross got out his fine-toothed comb and promised to take up what was left of the day picking nits. In J-school I was trained to dismiss this kind of testimony out of hand and my contemporary peers are of the opinion that I failed to learn my lessons in this regard: “too much detail, McEwen,” they say. “Why don’t you just sleep through all that then go ask the lawyers for a well thought-out soundbite-type quote afterwards. That’s the professional way, the way it’s done.”

But nowadays reporters don’t even know where the County Courthouse is — they just sit in the newsroom wondering why circulation is going down the toilet (“let’s blame the internet”) and wait for a press release from Mike Geniella. In any case, I’m going to cut through a lot of Martinez’s questions and synthesize his cross-examination into a few salient particulars with a view to showing the telling details rather than the obfuscating ones.

Martinez: “Looking at People’s One, the factual diagram, and especially at TFM number one — can you determine how that was made?”

Heinke: “It’s my opinion that it was made by a collision from the rear.”

Martinez: “How do you know which bicycle it was that made the TFM?”

Heinke: “I asked the parties who owned the bicycles where their bicycles had been moved to from the roadway.”

Martinez: “What did Ms. Banks tell you specifically about her bicycle?”

Heinke: “I can’t remember what she said, specifically. Besides, Officer Slates contacted all the bicycle riders first and took their statements.”

Martinez: “My question to you is do you have a specific recollection of asking Ms. Banks where her bicycle ended up?”

Heinke: “No.”

Martinez: “So, you don’t remember. Let me ask you this: Did you take any notes.”

Heinke: “Yes I did.”

Martinez: “Did you incorporate your notes into your report?”

Heinke: “No, they were given to Officer Slates.”

Martinez: “In your opinion the vehicle was traveling north?”

Heinke: “Yes.”

Martinez: “Can you tell the direction of the friction marks?”

Heinke: “The same direction the bicycle was traveling.”

Martinez: “How do you know?”

Heinke: “It’s common sense.”

Martinez: “How wide is the area east of the fog-line, before the asphalt ends and the dirt begins?”

Heinke: “Eight inches. It may vary, but approximately it’s eight inches.”

Martinez: “And the TFMs begin to the west of the fog-line?”

Heinke: “Yes.”

Martinez: “And the general direction is to the north-east?”

Heinke: “Yes.”

Martinez: “Were you ever told how fast the bicycles were going?”

Heinke: “No.”

Behnke had to take a time out for a doctor’s appointment, so this slo-mo train of thought resumed in the afternoon, some three hours later and somehow derailed into a discussion of the primary collision factors.

Martinez: “Was it your duty to determine the primary collision factors [PCFs]?”

Heinke: “No, it was not.”

Martinez: “But you indicated that a determination of the PCFs was made.”

Heinke: “Yes.”

Martinez: “Was it your duty to collect evidence for that?”

Heinke: “Yes, it was.”

Martinez: “You said you couldn’t be certain of the area of impact?”

Heinke: “Yes, I did.”

Martinez: “Was that true of all the bicycles?”

Heinke: “No. Because bicycle number four had not been moved.”

Martinez: “The next day you had a discussion with Officer Pohl concerning the area of impact with vehicle number two?”

Heinke: “Also about vehicle number three.”

Martinez: “I understand. But do you know if Officer Pohl is trained in accident reconstruction?”

Heinke: “I don’t know that she is, no.”

Martinez: “What did you tell her?”

Heinke: “The evidence I had gathered at the scene.”

Martinez: “Did she give you the area of impact then?”

Heinke: “No. Since the bike had been moved it would have to be estimated.”

Martinez: “Could you tell if the bicycle brakes had been applied?”

Heinke: “No.”

Martinez: “Were there any paint transfers from the bikes to the car?”

Heinke: “Not that I recall, but there was a puncture in the front bumper from a bicycle sprocket.”

Martinez: “A puncture from vehicle number two?”

Heinke: “I don’t have any way of determining which bicycle caused it.”

The puncture was subjected to considerable scrutiny, but nothing decisive was ever gleaned from the effort. In that respect it was like much of the endless delving into detail — it produced no real evidence for defense. In the end, Mr. Martinez was reduced to citing his questions as if they were evidence, and dismissing the real evidence — the witness’s testimony — as “inconclusive.” …

Behnke: “The People don’t have to prove that the defendant actually intended to use force.”

Martinez: “What we don’t have here is any speed of the vehicle and I don’t recall if we even got into the posted speed limit.”

Behnke: “We have the driver’s estimate that he was going approximately 45 mph when his windshield collapsed and he found himself looking at a woman on the hood of his car. And it sounds like a very long distance—”

This woman-victim was carried on the hood until the car ran off the road into the mud and she was thrown off. Then the vehicle kept going and ended up on top of her and her bicycle, pinning her and making her extrication exceedingly painful for her and very difficult for the extricators.

Martinez: “It sounds horrible, and a long distance, but how much time are we talking about? The driver was a minor, and he was impaired, so what we have to deal with is the unity of time, and was my client aware of what was happening when she hit the window.”

Rosenfeld: “By the time Mr. Ray hit the first couple of bicyclists he should have been aware of what was happening.”

Behnke: “I’m going to take a few minutes and review Officer Slates’ testimony, so give me a few minutes before I rule…”

…

Behnke: “At this time, there being sufficient evidence for the 245 [assault with a deadly weapon] — there was 1000 feet of visibility on a straightaway — for Mr. Clifford (a bicyclist). However, I’m not going to make a finding at this time for a 245 on Ms. Banks (another bicyclist); I’m going to give the defendant the benefit of the doubt. As to Ms. Stern (bicyclist) and the others, yes, the 245 applies. (The vehicle as weapon.) Also, both counts on the DUI. The great bodily injury special allegations are all found to be true. Although Michael Sokolski had no broken bones he had a large hematoma [swollen internal bleeding] with significant loss of blood as the emergency personnel spent several hours trying to bring the bleeding under control.”

The case will return in a few weeks for arraignment on the information and a trial will probably be set. Defense attorney Martinez still has the issue of the Miranda reading to work with, as well as his extraordinary ability to exhaust a jury. Stay tuned and hang up your bicycle — it’s really dangerous to ride one on Mendocino County's treacherous country roads.