Judge denies motion to dismiss before 2nd trial in Modesto slaying

A Stanislaus County judge on Friday rejected a motion to dismiss from two defendants accused of murder who say their right to a speedy trial is being violated by the prosecution.

It’s been 14 months since a jury failed to reach a verdict against Lisandro Mendoza, Nancy Rodriguez and four others charged in the deadly attack on Erick Gomez. The prosecution says Gomez, 20, was targeted by vengeful Sureño gang members hunting down rival Norteño gang members Feb. 14, 2013.

Superior Court Judge Thomas Zeff denied the motion to dismiss from Mendoza and Rodriguez, saying the trial delays are not at the point to be considered prejudicial or unconstitutional. The judge, however, said it could become excessive if the delays continue to accumulate.

The defense attorneys could file another motion to dismiss if the trial remains on hold. Zeff has scheduled the trial to begin April 11, but the prosecutor has already told the judge that she would not be available to proceed until the first or second week of May, and only if everything went according to plan in the lengthy preliminary hearing the prosecutor is handling.

The second trial in the Gomez slaying case initially was scheduled to begin Feb. 29, but the trial is being stalled by the case against prominent Modesto defense attorney Frank Carson and others charged in the slaying of Turlock resident Korey Kauffman. Carson and five co-defendants are in the middle of a preliminary hearing that began in mid-October, and it’s unclear when it will end.

Chief Deputy District Attorney Marlisa Ferreira is prosecuting the Gomez and Kauffman slaying cases. The Gomez trial can’t begin because Ferreira is still in the middle of the Kauffman preliminary hearing.

Lewis Wentz, Mendoza’s attorney, argued that the Stanislaus County District Attorney’s Office should have assigned another prosecutor to the Gomez case when Ferreira was assigned to the Kauffman case last summer or when the preliminary hearing began in the fall. The defense attorney says that would have given the another prosecutor plenty of time to be ready for trial in February.

The Kauffman case was the result of a three-year investigation that culminated with Carson’s arrest in August. It includes thousands of pages of discovery evidence and numerous witnesses. “That is a massive, massive case. … We have no idea when Mr. Carson’s case might end,” Wentz told Zeff.

Mendoza has never waived his right to a speedy trial, always asking the court to proceed with his case as soon as possible. Zeff has decided to have the defendants stand trial together, forcing Mendoza to wait while in custody at county jail. Rodriguez has only recently refused to waive her right to a speedy trial.

Ferreira wasn’t involved in the first Gomez trial. Deputy District Attorney Tom Brennan was the prosecutor in that trial. Ferreira told the judge Monday that Brennan was ready to begin the second trial from January through May 2015, but there were hold-ups attributed to one or more of the defendants.

Brennan now works for the state attorney general’s office, and Ferreira was assigned to the Gomez case in May.

“I would’ve liked to have started this trial a long time ago … but we’re not there yet,” Ferreira told the judge Monday.

Del Bohner, Rodriguez’s attorney, argued that the prosecutor must have known early in the Kauffman case that the preliminary hearing would last longer than two months, as it was initially estimated. He told the judge Monday that the District Attorney’s Office has not proved that it tried to find another prosecutor to handle the Gomez case.

“They need to be prepared and take cases to trial,” Bohner said in court.

Zeff heard the arguments Monday and denied the motion to dismiss Friday morning. After Friday’s hearing, Bohner said he will file an appeal seeking to overturn Zeff’s ruling. It’s unclear what effect an appellate court review would have on the start of the Gomez trial.

Ferreira said in court Monday that the Kauffman hearing could conclude by mid-May, but defense attorney Jesse Garcia recently suffered a serious ankle injury. Garcia represents Georgia DeFilippo, Carson’s wife, who also is accused of murder in Kauffman’s death.

The prosecutor said it’s unclear when Garcia will return to the Kauffman hearing. Judge Barbara Zuniga could choose to have DeFelippo prosecuted separately, which would mean the hearing could continue for the other defendants. Zuniga is the visiting judge assigned to the Kauffman case.

The first trial in the Gomez slaying case was held in a former federal bankruptcy courtroom in downtown Modesto to allow more space for the increased number of defendants, attorneys and bailiffs. That’s where the second trial was supposed to be held, but the Kauffman preliminary hearing is being held there. If the second Gomez trial were to start soon, it would have to be held at the main courthouse building.

This story was originally published April 1, 2016 at 4:39 PM with the headline "Judge denies motion to dismiss before 2nd trial in Modesto slaying."