Justice delayed for family of murdered Modesto man
Julie Sandoval-Preciado’s son was gunned down between Modesto and Ceres when George W. Bush was president. The San Francisco Giants had not won a World Series in 53 years and the iPhone was on the verge of making its debut.
Over the next few weeks in mid-2007, investigators obtained mounds of evidence and confessions from four men, and all were charged with murder.
More than eight years later, Sandoval-Preciado still waits for justice.
“This is a disgrace,” she said, crying, in a recent interview. “I think I’ve been more than patient in waiting.”
The men also bide their time, confined in Stanislaus County Jail, where only 28 percent of inmates are serving sentences and 72 percent are waiting for their trials. Not all are accused of murder, but those who are find themselves in one of the most bogged-down local court systems in California.
Kids are becoming men literally in jail awaiting trial.
Robert Chase, defense attorney, Modesto
Among 17 counties with readily available data, Stanislaus has the most homicide cases pending – 108. That number exceeds counties that are far larger and where many more murders are committed, such as San Diego (95 open homicide cases) and Sacramento (105). Adjusted for population, Stanislaus has more than three times the average of murder cases waiting to be tried.
The same ratio holds true for old homicide cases, defined in The Modesto Bee’s analysis as waiting at least five years.
Maybe Stanislaus County is simply bloodier than others?
Not at all. In the past decade, Stanislaus saw fewer murders each year per capita (6.5 per 100,000 population) than its neighbors, Merced (8.9) and San Joaquin (8.7). Crime rates continue to fall here like they have throughout California, studies show.
We’re trying to find out who’s responsible: the judges, the DA or the defense? They’re all involved, I think, to some extent. The average person has no idea how these cases drag out for years and we’re all paying for it.
Jim DeMartini, supervisor, Stanislaus County
Despite having fewer crimes to deal with, justice seems stuck in low gear in Stanislaus courts. Only 81 percent of Stanislaus felonies were resolved in less than a year for the latest available period, compared with 85 percent in Merced, 88 percent in Tuolumne, 98 percent in San Joaquin and the statewide average of 89 percent.
Does Stanislaus have fewer prosecutors? Actually, Merced gets by with even less: 8.7 per 100,000 population, compared with 8.9 in Stanislaus County.
What about Stanislaus judges? Are they just overworked?
Maybe, but no more than judges elsewhere in California. In fact, the most recent study found that those in two-thirds of California’s 58 counties handle more filings annually than Stanislaus judges. The same “2014 Court Statistics Report; Statewide Caseload Trends” by the Judicial Council of California said Merced judges are far busier, with only 12 of the 58 counties handling more cases.
While cases pile up in sluggish Stanislaus courts, defendants sit in jail, each costing taxpayers $37,000 a year.
‘The system is broken down’
“They’ve definitely got a problem there and it’s just getting worse every year,” said Stanislaus County Supervisor Jim DeMartini, whose board bears much of the cost burden resulting from the backlog. “The system is broken down. The old joke is having your sentence changed from the death penalty to life in court.”
It didn’t used to be like this, records show.
Twenty-four years ago, only two murder cases more than 5 years old waited in Stanislaus courts. For the next 15 years that number flatlined, sometimes dipping to one and never exceeding two.
But in 2007, Stanislaus courts suddenly had four homicide cases at least 5 years old. And that number since has steadily grown to 18 today – again, three times the 17-county average when adjusted for population.
“Come on, let’s make sure these victims’ families get justice,” said Bill O’Brien, also a county supervisor.
144 Defendants awaiting trial for murder in Stanislaus courts
Players in the local judicial system are divided, pointing fingers of blame at each other and at increasingly complex, often multidefendant cases. But those with perhaps the most power to make a change – judges – refused to speak with The Bee.
Lawyers representing the accused are notorious for using delays as a defense strategy.
“Delay inures to the benefit of the defense in almost every case,” said John Goulart, who prosecuted Stanislaus murder cases before retiring recently. With the passage of time, “witnesses forget, they move away, they die. You’ll see defense continuances ad nauseam. I think it’s gaming the system.”
Kirk McAllister is a former prosecutor-turned-defense lawyer in Modesto who wrote a playbook for criminal trials in 2007. He said some delays are fair because defense attorneys come brand new to cases after law agencies and prosecutors have spent weeks, months and even years preparing.
“Some counties try to run through at lightning speed, which is not a good brand of justice,” McAllister said. “It’s a prosecution tactic to process the case before the defense is ready defend it.”
Finding the right balance to achieve justice for all sides is tricky.
“Kids are becoming men literally in jail awaiting trial,” Modesto attorney Robert Chase said. “I’ve had (defendants’) mothers who say, ‘Mr. Chase, how much longer? When will we know?’ I have to be blunt and tell them, ‘I can’t tell you.’”
Judges and prosecutors can apply pressure to keep things rolling. But they seem to have limited success in Stanislaus courts, at least in murder trials.
“One of the most important jobs for a deputy district attorney is to move cases as expeditiously as possible,” said Larry Morse II, district attorney of Merced County. “Witnesses have a right, as defendants do under the California Constitution, to a speedy trial. We try to honor that.”
That right to a speedy trial usually is waived by defendants. Modesto’s most notable exception was Scott Peterson, whose blockbuster 2004 trial for the murder of his pregnant wife, Laci, began less than a year after his arrest; his death sentence appeal is pending before the California Supreme Court.
Stanislaus’ unusual spike in unresolved murder trials roughly coincides with a 2005 change in how Stanislaus judges handle cases, followed by the election of District Attorney Birgit Fladager a year later. Her 2006 opponent – then-Judge Michael Cummins – criticized prosecution leadership in his campaign, focusing on what he deemed a low success rate in murder cases; Fladager was chief deputy district attorney at the time and had won fame for directing the Peterson prosecution.
Several defense attorneys going up against Fladager’s prosecutors were reluctant to discuss how her leadership might affect case efficiency. Some noted turnover in her office, including seasoned prosecutors leaving who had handled the murder cases now stacking up.
The Carson effect
All said the recent arrest of prominent defense attorney Frank Carson, who had challenged Fladager at the polls last year, will make things worse because he’s no longer in the mix and attorneys taking his homicide cases will need time to get up to speed, causing further delays. He had 71 pending cases, although only a portion involve murder charges.
“I think she goes to trial on more cases and doesn’t settle a lot that, in my opinion, she should settle,” Chase said. He defends one of the four suspects charged in the 2007 murder of Erik Gustavo Sandoval Preciado; Carson defended another until his own arrest, and a successor, James Mootz of Manteca, was appointed Sept. 4.
Those two defendants are scheduled for trial in November, 8 1/2 years after Preciado was slain in a botched carjacking. Whether Mootz will be ready is unknown; he did not return calls.
The victim’s mother, who has attended most of the court proceedings – more than 200 and counting – fears the worst: yet another lengthy delay. In frustration, she filed a complaint last year with the state Commission on Judicial Performance, saying the judge would not stand up to defense attorneys requesting delays. The attitude seemed to be, “to hell with the case and our family be damned,” Sandoval-Preciado wrote.
Carson had filed some continuance requests; in one, he cited his campaign for district attorney, saying he was concerned that his client could think Carson was putting his own interests above the client’s. Fladager’s office objected to the delay, to no avail.
Fladager flatly rejected the notion that her leadership style has anything to do with court delays. She was among the most strident opponents, she said, when judges and court administrators in 2005 changed the way trials are routed, and she puts blame for the growing backlog squarely on that decision.
I think the judges are tired at this point of hearing me bang the drum about this. It’s very clear from the numbers that (direct calendaring) is not working in this county for serious cases.
Birgit Fladager, district attorney, Stanislaus County
“Before it started, I was trying to tell them, ‘It’s a bad idea, it’s not going to work, please don’t do this,’” she said. But her warnings and subsequent requests have met with stiff resistance, she said. “They’re just absolutely not willing to back off. I don’t know if it’s out of loyalty to Judge (Wray) Ladine or if it’s just, ‘We started down this path and by golly it needs to work.’”
Ladine was a major force behind the change but died in October 2004, a few weeks before it was enacted.
The change from what was called master calendaring to direct calendaring resulted in judges keeping a given case from start to finish instead of different judges handling various segments of a given case as it proceeds toward trial. Administrators 10 years ago predicted the change would make things more efficient because judges would have more control over individual cases, they said.
Just the opposite has happened, Fladager and Goulart said; when a trial finally begins, that judge’s remaining caseload stacks up instead of being sent to another judge.
“I personally think direct calendaring is a massive disaster, costing lots of money and compromising the administration of justice,” she said.
Some defense attorneys and court administrators could not disagree more.
“I don’t think it has anything to do with direct calendaring,” said Tim Bazar, the county’s appointed public defender (as opposed to Fladager, whose position is elected) since 1996. He said delays are inherent in ever-increasing multidefendant murder cases, many involving gangs; some have as many lawyers as defendants, decreasing the chance that all are available to try a case on a given date.
We’re pushing things through and getting things done with the resources we have.
Rebecca Fleming, executive officer, Stanislaus Superior Court
Rebecca Fleming, Stanislaus’ court executive officer, asserted that direct calendaring has “increased efficiency” and praised “a very hardworking bench” of judges. Pressed to explain the backlog in murder cases, Fleming said Stanislaus has one less judge than 10 years ago. The current contingent of 21 judges and three court commissioners includes two judges appointed early this year and is three judgeships short of what’s needed, she said.
“Could things work better? Absolutely, if we could get more judges,” she said.
Justice on a shoestring budget
Ideally, Stanislaus courts should employ 283 people, but the $26 million budget covers only 240, Fleming said. A controversial Judicial Council of California formula put Stanislaus courts fourth-to-last for adequate funding among California’s 58 counties.
That comes despite the judicial council’s other findings: that Stanislaus judges are outworked by those in two-thirds of California counties while dispensing with felonies far slower than the statewide average.
Construction on a new courthouse is expected to begin in a couple of years. It would have enough courtrooms for a combination of 24 judges and three commissioners – just enough for the current need.
Mike Tozzi oversaw the change to direct calendaring as Fleming’s predecessor before he retired a couple of years ago. He said calendaring has “absolutely nothing to do with how a murder case goes,” because such cases were handled the same before the change, with a single judge handling all stages.
“I will tell you from experience that both sides have asked for continuances multiple times,” Tozzi said. Fladager and her assistants “fought it and fought it and would blame things on the calendar, and we would roll our eyes because the evidence just wasn’t there. If I thought it was a calendaring issue, I would tell you. I’m not sure they understand it.”
Although California courts are separate from local agencies, Stanislaus County pays for courthouse security and all costs of jails and prosecution, plus defense expenses for those who can’t afford to hire private lawyers.
18 Homicide cases waiting five years for trial in Stanislaus courts
2 Homicide cases waiting five years for trial in Merced courts
1 Homicide case waiting five years for trial in San Joaquin courts
County supervisors in March had biting words about the backlog while discussing Fladager’s staffing level in a midyear budget review.
“Efficiencies in the courthouse have to be a huge priority of this county,” O’Brien said at the time. DeMartini railed on the high costs for not taking care of business in a timely manner.
Narrative in the draft county budget, adopted in June, features a stern description of the “unprecedented” backlog crisis, saying the load is “very heavy for an office of this size,” referring to Fladager’s office. The document notes “extraordinary effort, overtime and additional costs above and beyond other types of cases which include transcription, expert witness fees, witness transportation and expenses, discovery and exhibits.”
Mounting unease led to talks between county and courts leaders. Those involved have included O’Brien, Board of Supervisors Chairman Terry Withrow and County Chief Executive Officer Stan Risen on one side, with Fleming, Presiding Judge Marie Silveira and Assistant Presiding Judge Ricardo Córdova on the other.
County representatives say they’re pressing to improve efficiency, while Fleming said meetings have centered on security, funding of indigent defense and other process issues. Changing the direct calendaring system has not come up, she said.
Withrow said the best hope for a solution lies in working together. “There is a lot of finger-pointing,” he said. “Everyone blames inefficiencies on the other side. In my mind, everyone has a finger in this thing. There is not one person or one side of the argument to blame; everyone’s got a piece of the action.”
Bazar, the public defender, said participants in courts may get some relief from voter-approved Proposition 47, which reclassified some felonies as misdemeanors. Although his office has seen a 15 percent rise in misdemeanors from a year ago, that’s overshadowed by a 34 percent drop in felonies, he said.
“Maybe some of that breathing room should be devoted to some of the backlog,” Bazar said.
DeMartini said the role that judges play in granting delays needs more scrutiny.
“If I had to say who’s responsible,” he said, “it’s most likely the judges. You’re not going to get a continuance unless a judge goes along with it.”
Presiding judge: No time to talk
Silveira, the presiding judge, sent word through Fleming that she’s too busy to discuss the murder-case backlog. Silveira has been embroiled in just such a trial with three defendants that has consumed, including pretrial proceedings, parts of least 180 court days.
Although judges rotate in and out of the top position, Silveira also was presiding judge in 2005 when the change to direct calendaring was implemented. She told The Bee then that the change would streamline cases.
The Bee also reached out to five retired Stanislaus judges, many of whom continue to work in the legal system. None returned calls.
No one knows better than victims’ families that justice delayed is justice denied, said Sandoval-Preciado, still waiting more than eight years after her son was killed in a car theft gone bad.
It’s not fair. I want closure, so my son can rest.
Julie Sandoval-Preciado, mother of 2007 murder victim
Preciado was 31 and the father of a 4-year-old girl when his Chevy Impala caught the eye of a man in need of a motor for a similar car he was fixing up, authorities say. The man agreed to pay $500 if Gary Justin Spray would steal it, according to an arrest warrant affidavit.
Spray, now 36, and accomplices approached the car with Preciado in it about 1 a.m. Gunfire erupted and he was shot three times, once in the head.
Yosef Abdo Elsumeri, the man suspected of hiring Spray, gave him $100 for his trouble even though Spray had not delivered the goods, the affidavit says. Elsumeri was questioned by sheriff’s investigators but fled to Yemen and was never arrested. Also charged with murder are Adolfo Leyva, 26, Steve Salgado, 27, and Andrew Briseno, 28.
Three of the men recently agreed to share their thoughts on waiting so long for their trials, but they backed out once The Bee arrived at the jail.
Sandoval-Preciado, who was 16 when her son was born in Modesto, sensed the worst upon arriving at the hospital, she said. She’s now 56 and lives in the Bay Area.
“When I saw my baby hooked up to all the machines, I knew he wasn’t going to make it,” she said. She kept vigil for two days, sleeping in a waiting room. She gave him a manicure, then a pedicure, because she wanted him to approach heaven looking his best, she said.
“Then I told them I just wanted to hold my baby,” she said. Nurses looked the other way as she climbed into the hospital bed, where she stayed the next two nights, she said, showing photographs of mother and son taken by friends.
‘A trial with no ending’
“It was so peaceful,” Sandoval-Preciado said. “I was holding my baby. I knew he wasn’t going to make it. I remember telling him it was OK for him to go.”
One of his kidneys went to her second-cousin, a Modesto resident who had endured two years of dialysis. Erik’s other kidney, heart and liver went to others in need, from the Central Valley to Michigan.
His mother didn’t fare well at first, turning to alcohol as pain and hatred consumed her. A five-year spiral ended with grief-coping tools acquired during a six-month stay in a rehab center, where she now volunteers three days a week. For therapy, she bicycles 100 miles a week and walks on the beach.
“I forgave them so I could have peace,” she said. “The next step is seeking justice for Erik, and it keeps dragging along. This is a trial that has no ending.”
Garth Stapley: 209-578-2390