Last year local judges would tell defendants entering a guilty plea that they “could be deported” if they were not American citizens. Now they say, “You will be deported,” leaving no question in the mind of someone like Emiliano Francisco Santos that he’s getting a one-way ticket south.
Santos was arrested for being stoned out of his mind and in possession of a loaded firearm on December 16th when the CHP pulled over the vehicle he was riding in.
Officer Shelly Wilson was investigating a DUI north of the Calpella off-ramp on Highway 101 when she asked Mr. Santos to roll down the passenger-side window, which was more than he was capable of doing. He was too loaded to manage it. He could hardly hold his head up. The driver had been arrested and the vehicle would have to be towed. And here was Mr. Santos so out of it he couldn’t even safely walk off the freeway pull-out.
Officer Wilson asked Santos, by now mumblingly coherent and more or less vertical, if he could call someone to come get him. Santos dutifully called a couple of numbers in Covelo but nobody wanted to retrieve him, it seemed.
Then Officer Brandon Chitty, doing an “inventory” of the vehicle’s contents (euphemism for an obligatory search) before the tow truck arrived, found a loaded Ruger .22 revolver. There was nothing to do with Santos at that point but haul him in and charge him with violation of section 11370.1(A) of the Health & Safety Code.
At the jail, Officer Kamarski found a bag of cocaine and some .22 bullets in Santos’ pocket. The .22 rounds tied him firmly to the revolver; and a fingerprint run proved he’d given a false name, Luis Santos, to the CHP, as he had no ID. The arrest record from CLETS (California Law Enforcement Communication System) had two names on it, Luis Filipe and Luis Santos.
Would the real pistolero please stand up?
Neither Mr. Santos nor the driver of the vehicle laid claim to the gun, but both had equal access to it as it was under a suitcase on the back seat. Santos, with the bullets in his pocket, was the more likely candidate for ownership; plus, he had the cocaine. Being drunk and in possession of a gun isn’t necessarily illegal, but possessing cocaine is. Also, there’s a law against unpermitted concealed weapons and loaded weapons in vehicle, which will no doubt apply to the driver, whose name the lawyers didn’t share with the court.
Defense attorney Heidi Larsen thought the .22 bullets should have been examined to determine if they were of the same make as the ones in the cylinder of the revolver, but Judge John Behnke ruled it didn’t matter for the purposes of the prelim. And it shouldn’t matter anyhow since the gun will shoot any brand of the same caliber – even different lengths, such as .22 shorts, .22 longs, and .22 long rifles (not, however, .22 magnums, which requires switching out the cylinder).
(Perhaps your trusty courthouse correspondent sometimes sounds a trifle pedantic on gun nomenclature and the dynamics of ballistics, having once been an editor at Guns Magazine. But I’ve seen lawyers with a very little knowledge of guns totally befuddle judges who have none. Like the time Chris Brooks got his guy off because the judge didn’t know a 9 mm was only a silly millimeter smaller than a .40 caliber, and that by looking at the business end of either, even a gunsmith would need a pair of calipers — not to mention the trigger-finger's owner's permission — to tell the difference. )
If the niceties of .22 bullets can cause confusion in criminal proceedings, imagine how onerous it must be for judges when it comes to the far more scientific problems caused by all the different “white crystalline powders” that alter one’s consciousness and are proscribed by the Health & Safety Code. Does a judge have to be an expert in every field of endeavor? Pretty much, yes.
At the jail, the substance found on Mr. Santos was subjected to a NIK test. This is a brand-name test kit to presumptively identify any narcotic substance before the substance was sent to the Department of Justice in Eureka where Senior Criminalist Kay Rosenfeld established that the substance was indeed cocaine.
Ms. Larsen objected every step of the way, and called into question the ability and credentials of everyone involved, from Corrections Officer Kamarski, who administered the NIK test, to Senior Criminalist Rosenfeld, who confirmed it.
Inspector Mariano Guzman of the DAs Office was brought in to sort it all out.
Deputy DA Thomas Geddes: “Inspector Guzman, how long have you been in law enforcement?”
Guzman: “Over 33 years.”
Geddes: “When were you brought in on this case?”
Guzman: “Last week.”
Geddes: “Did you contact Deputy Kamarski?”
Guzman: “I did.”
Geddes: “Did you ask him about the NIK test?”
Guzman: “Yes.”
Geddes: “He did it himself?”
Guzman: “Yes, he did.”
Geddes: “How was he trained in the performance of the NIK test?”
Guzman: “He was trained on the job by his Field Training Officer.”
Geddes: “And he believed the substance in question was cocaine?”
Guzman: “He did.”
Geddes: “Did he determine it to be a useable amount?”
Guzman: “Yes.”
Geddes: “ Was it sent to the Department of Justice for testing?”
Guzman: “It was.”
Geddes: “By the CHP?”
Guzman: “They received the report.”
Geddes: “I’m showing you what’s been marked as People’s Exhibit No. 1… Is this the report from the Department of Justice?”
Larsen: “Objection.”
Judge Behnke: “Let me have a look at it… It appears to be a Xerox copy, which probably doesn’t matter for the purposes of a prelim, and it is signed by Senior Criminalist Kay Rosenfeld. She indicated she conducted the examination of the substance during the normal course of business”—
Larsen: “I have no objection to your honor receiving the document into evidence, but there’s no indication Senior Criminalist Rosenfeld was spoken to, and how are we to know how many times she’s done this test? Also, this investigator [Guzman] did not receive it from the DOJ but from the CHP. We have therefore no foundation.”
Behnke: “I’m going to receive it into evidence. She [Rosenfeld] did the examination in the ordinary course of her work and I don’t think it matters where the investigator received it from, so I’m going to receive it.”
Larsen: “I object to the NIK test at the jail, then.”
Behnke: “Where we are is we have a confirmatory test from the DOJ, so it’s not going to make a substantial difference in the case. As I understand it, Officer Kamarski gave the substance back to the CHP officer?”
Guzman: “Correct.”
Larsen: “Although my client’s name is on this [Exhibit No. 1] it doesn’t have a case number on it, does it?”
Guzman: “I don’t know.”
Larsen: “You never spoke to Rosenfeld, did you?”
Guzman: “No.”
Larsen: “And you don’t know the procedure the CHP used to send it, do you?”
Guzman: “No.”
Prosecutor Geddes recalled CHP Officer Brandon Chitty and asked him: “Did you observe the NIK test?”
Chitty: “I did.”
Geddes: “Did you then give the drugs to transport?”
Chitty: “No, I gave them to Officer Wilson.”
Geddes recalled CHP Officer Wilson and asked her: “Who did you receive the drugs from?”
Wilson: “I don’t recall whether it was from the corrections officer who did the NIK test or someone else. But I transported both the drugs and the bullets.”
Larsen: “Do you have any recollection of putting them in the evidence locker?”
Wilson: “No, not for sure.”
Larsen: “Your honor, I believe there are issues with the chain of custody for the alleged drugs – the officer doesn’t remember putting them in the evidence locker, and there’s no testimony as to how it was labeled and transported. Also, my client was so intoxicated the officers were worried about his safety, and since the vehicle belonged to someone else, the only thing he can be held for is the possible possession of a firearm. And as to the bullets in his pocket, we don’t know if they were of the same manufacture as the ones in the firearm.”
Behnke: “The court finds the evidence sufficient for possession of a firearm and for the purposes of a prelim, the evidence is sufficient for the possession of drugs.”
Larsen: “As for the 647f, my client was not in public, and he had nowhere else to be!”
Behnke: “A defense to that charge can be successfully argued, but I think the bullets being all of the same caliber makes me sufficiently suspicious to hold him to answer. The defendant can remain out of custody with the search and seizure clause and we’ll bring this back in two weeks for arraignment on the information.”
Not a violent crime, and if someone had come to pick him up Mr. Santos would be home free. But as it is he’s a strong candidate for deportation.
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