A Ukiah man, Tony Fernandez, has been bound over for trial on a charge of false imprisonment after a lengthy preliminary hearing last week.
False imprisonment is one of those charges that the courts call a wobbler, because, depending on the circumstances, it can be charged either as a misdemeanor or a felony. To detain a person against their will, even briefly, is a crime. In this case, Mr. Fernandez is alleged to have unlawfully detained a minor, unlawfully detained him by the throat up against a wall, at a keen teen party in his house. The kid was pinned there until he smiled.
Another kid had a gun held to his head by the host's pal.
Were these jokes, tough love or felonies?
Defense attorney Justin Petersen argued that his client, Fernandez, host and chaperone, was the only adult at the party and had a “duty” to force a smile out of the 17-year-old victim, Jessie. (To not further complicate the lives of the teenagers involved, we’ll use only their first names, although we know teenagers who are in their second combat tour in Afghanistan.)
The charge stems from an incident back in early January. After a night of bar hopping, Fernandez came home to find that his daughter, Carson, had thrown a party, inviting many of her old school chums, youngsters that Fernandez knew quite well, for the most part. Things might have ended serenely that night if Fernandez had not brought a co-worker and fellow ex-con, Marley Walrath, 31, of Lake Havaseu, Arizona, home with him.
The fun-loving Walrath had encountered a theater cosmetician at a bar and had had himself decorated with a bloody and gruesome gunshot wound to the neck. If this were not enough to scare the bejesus out of the kids, he put a gun, a real gun, to Jessie’s forehead, then trained the weapon on Jessie’s friend, Chandler.
The kids didn't get the joke. In fact it scared hell out of them.
Stripped to its basic facts and not considered as humor, a gun to the head could be construed as a serious crime — assault with a deadly weapon, which is not a wobbler; it’s a violent felony, a strike offense. Walrath was committing another felony by being a convicted felon in possession of a firearm, but Walrath’s legal difficulties are a separate case.
Mr. Fernandez is a man with what is often called, euphemistically, a “spotty” record — meaning he had blotted his copybook (as the Brits say) with several felonies, and two visits to the California Department of Corrections and Rehabilitation, along with a residency in a drug rehab program. Fernandez had last been discharged from CDCR in ’09, and his parole had been successfully completed in 2011. He had a good job, was again what’s called a “productive member of society.” And he was parenting his child in a responsible manner — until, that is, he went out drinking with Mr. Walrath.
“Chandler,” Mr. Petersen argued, had responded “appropriately” to having a gun pointed at him by a thug: “He was scared. Jessie’s reaction, however, was inappropriate — he got mad.”
On cross-examination, Petersen grilled Jessie relentlessly on his “anger issues,” as if getting angry at a guy holding a gun to your head is an unreasonable response, something for a Ukiah shrink to help you handle more "appropriately."
“So you testified that you and Chandler were walking across the yard back to the house when Chandler spit on the ground?”
“Yes, that’s right.”
“And Marley and Tony [Fernandez] are on the porch, and Marley says, 'Get over here', so you both go over to Tony and Marley, right?”
“And that’s when Marley says you disrespected Tony by spitting?”
“And you told him you didn’t think you had, and that’s when the gun came out?”
“No, the gun was already out when he said get over here. When we walked over, that’s when he put the gun against my forehead.”
“What did you do?”
“I smacked it away, and he pointed it at Chandler.”
“What did you do then?”
“I reached over and pulled the gun down, then we went on into the house.”
“Was that pretty much the whole of the gun incident?”
“What did you do next?”
“I went in and told everybody to lock the front door, that there was someone out there with a gun.”
“Somebody locked the door and we went to the back door where there was a kind of pantry or laundry room.”
“Did everyone go with you?”
“No, only about five or six of the others.”
“So there were still other kids in the house?”
“And you were angry, weren’t you?”
“And didn’t your friends try to talk you down; to get you to calm down?”
“Well, there’s a bathroom just off the pantry, isn’t there?”
“And was anyone in the bathroom?”
“Chelsea and Jayden were in there.”
“Chelsea was crying — why was that?”
“She was scared about what had happened on the porch.”
“Before Tony came in, did anyone else come in?”
“I don’t think so.”
“A person named Will?”
“I don’t remember.”
“Was Tony’s daughter in the room?”
“I don’t remember.”
“Objection, your honor,” DDA Beth Norman said. “If counsel is going to name everyone who was at the party, we’ll be here all day.”
They were there all day anyway.
Mr. Peterson is known for his lengthy, fine-toothed combing out of every nit of evidence. He was being paid to represent the adult funsters whose antics had scared a house full of teenagers to where the merriment was now being looked at as a serious felony. Judge John Behnke, after some moments of wobbling on this wobbler, sustained prosecutor Norman's objection, and Petersen resumed.
“Where were you when Tony came in?”
“By the back door.”
“But the others had left, so it was just you and Chandler?”
“And you were talking about the incident on the porch?”
“What were you saying?”
“I don’t remember.”
“But you were angry?”
“What did Tony do?”
“He came in and got in my face, asking me why I was mad.”
“What did you say?”
“Because his friend put a gun to my head.”
“He tried to get me to smile, and I wouldn’t.”
“What did Chandler do?”
“He was telling me to let it go and do what Tony wanted.”
“What caused him to grab you by the throat?”
“I think he said I had to smile or leave.”
“Objection, your honor.”
“What’s the objection?”
“Badgering the witness.”
“What caused Tony to let you go?”
“I smiled, then pushed him away and left.”
“Why didn’t you just go out the back door? All you had to do is reach over and turn the doorknob…?”
“I was being held against the wall by the throat.”
“But why didn’t you go out before he grabbed you?”
“’Cause that’s where Marley was with the gun.”
“Did you leave through the front door?”
“Who went with you?”
“It was just me and Chandler.”
Petersen's grilling of the kid went on from about 9:00 in the morning to 5:00 in the afternoon, every detail being rehashed and delineated, but the facts never changed.
On re-direct, DDA Norman got right to the point.
“When you went to this party, was it your understanding that this was Carson’s father’s house?”
“The People rest.”
Next day, defense attorney Petersen put his client, Mr. Gonzalez, on the stand. The Q&A went so fast that the court reporter several times threw up her hands, unable to keep up. She can take down over 500 words per minute, where as I cannot; so I didn’t get much of it. But after three or four times of Judge Behnke asking Fernandez and his lawyer to slow down, he finally said, “That’s it. I’m calling a recess.”
Back in the early 1980s, as an editorial intern at Ranch & Coast Magazine in San Diego, I wrote a story about how defense attorneys used videotaped rehearsals to get their clients ready to take the stand, so it was no surprise to me that the testimony had been well-rehearsed. But in this case, it seemed that lawyer and client knew their lines so well, they couldn’t restrain their eagerness to get their side of the story told, and the rapid-fire exchange overwhelmed professional efforts to make a legible transcript. The testimony of the defendant was eventually completed in my absence, after having been admonished by the judge to slow down, but at no point did Mr. Fernandez deny putting his hands on the victim and demanding that he smile. Nor did he deny the incident with the gun on the front porch.
When I arrived at court the following day, Chandler was on the stand and Petersen was raking him over the proverbial coals, with the same fine-toothed comb he’d used on his friend, Jessie.
“Were you drinking?”
“I had a six pack of Hamms.”
“Isn’t that the brand with a cartoon on the label?”
“A bear, right?”
“Yes, that’s right.”
“A black and white bear, with a fishing pole and a big grin on his face?”
“Yes. That sounds right.”
Petersen paused to lean casually on the rail, perhaps reminiscing, perhaps fantasizing how nice one of those cold beers would go down on this hot day… or maybe very carefully structuring his next question. I later heard one of the court’s officers remark that Petersen was indulging in one his own patented “fishing expeditions.”
I’ve included this small sampling (the bit about the beer) of the popular defense attorney’s style in order to show how similar he is to your trusty courthouse correspondent in this respect. “Too much detail, Bruce.” All the other newspaper reporters complain when they read my stories. “You must be getting paid by the word!” But a lot of readers like being shown, rather than told, what happens in court; and a lot of defendants appreciate the way Justin Petersen presents the (often telling) details of a case.
“So, you had a six-pack of Hamms. How many of ‘em did you drink?”
“Five, I think.”
“Did you see Jessie drink any?”
“Were the beers cans or bottles?”
“Hmm… Were you in a position to see what was going on in the back room? Between Tony and Jessie?”
“Yes. I was right there.”
Petersen then spent some time establishing precisely where the witness was (sitting on a washer or dryer).
“Now, out on the front porch, earlier, was the gun ever pointed at you?”
“Do you remember anything Tony said to Jessie, in the back room, about the incident on the front porch?”
“He said something like, 'I don’t care about the gun, whether it was a pistol, a machinegun, or a bazooka, you don’t disrespect my house.'”
“Do you remember Tony telling Jessie to smile?”
“Do you recall Jessie at any time trying to leave?”
“But he was right by the door, isn’t that true? Couldn’t he just reach over and open the door?”
“Yeah, but still, you gotta have room to get out the door…”
“But Tony wasn’t between him and the door, was he?”
“No, but he had his hands on him, yelling at him.”
“Who was yelling?”
“Tony was yelling.”
“What were you doing?”
“And there were girls in the bathroom?”
“Yes. And Chelsea pushed open the door and yelled at Tony, telling him to stop.”
“And you didn’t do anything? Just watched?”
“Objection — that’s been asked and answered.”
“Did Jessie ever give Tony a smile?”
“I don’t remember exactly, but yeah, sort of, in a sarcastic way, he kinda grinned.”
“How did you leave the party?”
“In Jessie’s truck.”
“His father’s truck, right?”
Prosecutor Norman asked, “How old were you and Jessie at the time?”
“We were both 17.”
Norman: “For the charge of false imprisonment, to keep someone restrained against their will, the People have met their burden. By his own admission, the defendant held the victim by the throat, so I think there’s sufficient evidence to support the charge that Mr. Fernandez used force to detain the victim.”
Behnke said, “I don’t believe that force is necessarily an element of false imprisonment. The law says the threat of violence or an act of menace is sufficient, if a person is made to go or stay somewhere against his will. Mr. Petersen?”
Petersen: “Well, it’s clear there is some kind of history between Jessie and Marley. Jessie claims he wasn’t drinking that night, but he gives a bogus story about driving”—
Behnke said, “The bogus story actually came from someone else.”
“Yes,” Petersen said, “but it shows he was afraid of drinking and driving his father’s truck. And the back room incident is pretty clear that Chandler had the appropriate reaction to the incident on the front porch — he was scared. And I think it’s important to contrast with that Jessie’s anger. Now, Tony’s the only adult there and I think it would be reckless of him not to get Jessie calmed down. That was his duty as an adult. And as soon as Jessie calmed down — when he smiled — my client let him go.”
Judge Behnke said, “I think the testimony of the last witness did little to establish what happened in the back room. Both Chandler’s and Jessie’s testimony as to what happened on the front porch were quite credible. Counsel tried to impeach him about the alcohol, and there could be something to that, but it doesn’t make me doubt his other statements. And Jessie’s and Tony’s story about what happened on the porch are both about the same. Marley did something unforgivable — as even Mr. Fernandez, I think, now realizes. And it seems that very shortly afterwards, Mr. Fernandez was in the back room trying to get Jessie to let the whole incident go. Along with that, Mr. Fernandez, in his statement to Officer Schapmire, tried to cover for Marley, saying there wasn’t a gun there. And making Jessie smile doesn’t exactly square with the ‘responsible adult’ argument, counsel. The defendant was restraining the victim, so I do find that the elements of false imprisonment are met.”
Petersen made a motion to have the false imprisonment charge reduced to a misdemeanor. “My client has a record for meth and theft, but no violence. And he did go to residential treatment, your honor.”
“When did he get out of prison, this last time?”
“In 2009, you honor.”
DDA Norman said, “He has four — wait, make that five — felonies. And he did two prison terms, for two different sets of crimes. And we must remember, these are kids, your honor, who grew up with his daughter. He goes out drinking and brings this Marley Walrath guy into this party. Jessie had no knowledge of who Marley was — has no ‘history’ with him, as counsel said. And then he follows Jessie into the back room where the kid is literally cowering, and minimizes the gun incident on the front porch. ‘No big deal,’ was Mr. Fernandez’s attitude — it didn’t matter to him whether it was a gun or a bazooka, or whatever. And I’m glad counsel brought up the bit about being the only responsible adult present. The defendant — this so-called responsible adult — goes straight to the back room when he gets in the house, he grabs Jessie by the throat and slams him up against the wall, telling him he’ll do what he’s told to do — victimizing him again!”
Judge Behnke looked through Fernandez’s lengthy record and summed up:
“Whether he gets the one year as a misdemeanor or the three years for a felony, the court’s discretion is somewhat limited. The motion to reduce the charge to a misdemeanor is difficult to do at the same time as the prelim, due to the lack of information, so I’m going to deny the 17b Motion without prejudice at this time, and you may file it again at the time of sentencing, Mr. Petersen.”
The prelim took as much time as many trials do, but, depending on how deep Mr. Fernandez’s pockets are, it could still go to trial.