The defense on Tuesday asked a judge to drop an allegation that could result in a sentence of life in prison without parole if a jury convicts Modesto attorney Frank Carson and two others charged with murder in the slaying of Korey Kauffman.
When Judge Barbara Zuniga in April ordered a trial for Carson and brothers Baljit Athwal and Daljit Atwal, she dropped a special circumstances allegation that Kauffman was ambushed when he was murdered.
Zuniga has said the prosecution did not present sufficient evidence to support the defendants’ intent to kill when a scuffle began that led to the alleged deadly shooting.
Nevertheless, Chief Deputy District Attorney Marlisa Ferreira added that special circumstances allegation against the three defendants. The law allows the prosecution to do that.
The defense challenged that portion of the prosecution’s charges, so retired Monterey County Judge Robert Moody was assigned to hear arguments. Moody said on Tuesday he will issue a written ruling within a week.
Judge Zuniga rejected their theory of lying in wait based on the (lack) credibility of Robert Woody.
Robert Forkner, Carson’s attorney
Without the special circumstances allegation, the defendants would face a maximum sentence of 25 years to life in prison if convicted of first-degree murder. If they’re convicted of second-degree murder, they would face a maximum of 15 years to life. The defendants’ trial is scheduled to begin Jan. 8.
The defense attorneys on Tuesday presented arguments based on the prosecution’s evidence during an 18-month preliminary hearing for the defendants. The defense was not admitting to any wrongdoing alleged in the prosecution’s theory; only challenging the special circumstances allegation.
“Judge Zuniga rejected their theory of lying in wait based on the credibility of Robert Woody,” said Robert Forkner, Carson’s attorney.
Prosecutors accuse Carson of being the ringleader of a criminal conspiracy to thwart thieves from repeatedly stealing antiques and scrap metal from his property on Ninth Street in Turlock. Kauffman, 26, went missing in spring 2012; his body was found more than a year later in Mariposa County.
The defense has said this is a case of wrongful prosecution by a Stanislaus County District Attorney’s Office intent on ruining a prominent criminal defense attorney.
The prosecutor on Tuesday argued that the conspiracy was evident in 60 to 90 days leading up Kauffman’s death, which included meetings between Carson and Baljit Athwal to help the attorney stop the thefts on his property. Ferreira said there was also a fight at the Turlock store between Daljit Atwal and Kauffman in which Atwal’s brother was present.
They had targeted Korey Kauffman at that point.
Chief Deputy District Attorney Marlisa Ferreira
In subsequent conversations, the defendants had associated Kauffman with the repeated thefts from Carson, according to the prosecutor. She said Woody said he and Baljit Athwal confronted Kauffman, threatening Kauffman to stay away from Carson’s property two days before Kauffman’s disappearance.
“They had targeted Korey Kauffman at that point,” Ferreira told the judge.
The defense said Kauffman was told “Your ass is grass;” but nothing else, according to the testimony. The attorneys said another witness said she saw Woody during that confrontation, but she was certain she did not see Baljit Athwal or his brother.
Woody has testified that Baljit Athwal and Daljit Atwal, owners of a Turlock convenience store, were fighting with Kauffman on Carson’s property moments before Daljit Atwal shot Kauffman to death. He also has claimed that Kauffman’s body was buried just outside the brothers’ store before Kauffman’s body was unearthed and dumped in Mariposa County.
Woody lied to authorities on July 22, when he told investigators Carson and another defendant were on the property when Kauffman was killed. A few weeks later, Woody agreed to a plea deal in exchange for his testimony against Carson and the others.
On Tuesday, Judge Moody told the attorneys that the law allows for a defendant who didn’t commit the killing “to be roped in” with a special circumstance allegation if the prosecution can prove the defendant accused of waiting to ambush Kauffman intended to kill him.
The prosecutor argued that one witness testified he saw unidentified men with guns running along the fence on Carson’s property not long after Kuaffman went to try to burglarize Carson’s property. Ferreira also said witnesses spotted irrigation pipes placed on Carson’s property as “bait” for burglars in the days leading up Kauffman’s death.
Hans Hjertonsson, Daljit Atwal’s attorney, said Woody testified that Baljit Athwal left the store late that night to check on Carson’s property. The defense attorney argued that there’s no evidence Baljit Athwal had a weapon while on Carson’s property.