LAKE COUNTY — The reverberations from the district attorney”s determination that Sheriff Frank Rivero lied after a 2008 on-duty shooting continue to be felt.
The prosecutor in a nearly two-year-old alleged biker-gang fight filed a motion earlier this month asking to reopen the preliminary hearing in the case to allow the defense to question the sheriff about DA Don Anderson”s finding.
Defendants Nicolas F. Carrillo, Timothy R. Bianchi and Josh L. Johnson oppose the prosecution”s request and assert that all charges against them should be dismissed in light of the motion to reopen.
The two sides were set to argue the matter Wednesday at the Lake County Courthouse, but the proceedings were delayed after the originally assigned judge recused himself.
The motion hearing was subsequently rescheduled to occur in three weeks before a retired Lake County judge.
The case against Bianchi, 35, Carrillo, 34, and Johnson, 37, dates back to a tattoo convention at Konocti Vista Casino outside Lakeport June 4, 2011. Authorities allege the three Sonoma County men — along with David D. Dabbs, who remains at large — acted as Hells Angels Motorcycle Club members and assaulted a Vagos Motorcycle Club member.
Bianchi, Carrillo and Johnson deny wrongdoing, pleading not guilty to all counts stemming from the alleged gang attack.
The trio were held to answer for all charges following a two-day preliminary hearing in March 2012, but their trial has faced several postponements in the meantime — reportedly in part because of the DA”s investigation into the sheriff.
Anderson completed his inquiry in February and found that Rivero lied to officials in the wake of a shooting incident in Whispering Pines that occurred when Rivero was a deputy. The sheriff denies the untruthfulness allegation.
Since the DA”s finding became public March 4, the first-term sheriff became the target of an ongoing recall effort, received a vote of no confidence from the Board of Supervisors and had his lawsuit challenging Anderson”s inquiry thrown out.
Anderson, also in his first term, said he intends to give evidence from his determination to criminal defendants in cases investigated by or otherwise involving Rivero, citing requirements under the precedent-setting U.S. Supreme Court case Brady v. Maryland.
Rivero, who reportedly collected video surveillance footage for the casino-fight case, testified for about an hour during the preliminary hearing of Bianchi, Carrillo and Johnson, but the DA”s “Brady” determination was still pending at that time.
Since the March 2012 proceedings, deputy DA Art Grothe said that the DA”s Office does not think Rivero played a pivotal role in the Hells Angels investigation and that he does not intend to call the sheriff to the stand during the trial, which remains unset.
Still, Grothe contended May 10 that the defendants” lawyers should have the chance to question the sheriff about the previously unavailable “Brady” finding, under the context of the preliminary hearing.
“While we do not think that Sheriff Rivero”s testimony is material the people recognize that the defense did not have an opportunity to examine Sheriff Rivero on the ”Brady” issue,” the prosecutor wrote in his motion to reopen the pretrial hearing.
The defendants disagree, arguing in part that prosecutors in fact possessed relevant materials about Rivero”s credibility and knowingly withheld the information before the March 2012 hearing.
“This motion (to reopen) is, therefore, a belated and legally improper attempt by the district attorney to correct a violation of defendant Carrillo”s substantial rights,” attorney Michael Clough, who represents Carrillo, wrote in his May 22 opposition brief.
Bianchi and Johnson, who have separate lawyers, joined in the opposition.
The prosecution and defense were set to debate the motion to reopen Wednesday morning, but Judge Andrew S. Blum, who presided over the preliminary hearing, noted that the opposition brief questioned his impartiality.
The defendants raised the issue because of the judge”s previous decision not to release certain details from Rivero”s personnel records following a private review of the documents.
“Sheriff Rivero”s confidential files contained information that should have been disclosed to defendant Carrillo by Judge Blum after he reviewed those files,” Clough wrote.
Blum denied being biased for or against the sheriff, but ultimately decided to recuse himself because of the context of the defendants” assertion.
“I can”t explain why I did what I did,” the judge said. “I can never say what I saw in a personnel file, and I never will.”
Because judges Stephen O. Hedstrom and Richard C. Martin were already disqualified, Blum referred the Hells Angels case to Judge Michael S. Lunas, the county”s fourth and final judge.
Lunas said he would not likely be prepared to consider the motion on Wednesday, so he gave the parties the option to argue the issue before him or a visiting judge at a later date.
The prosecution and defense ultimately agreed that the motion hearing should take place on June 18 before retired Lake County Judge Arthur H. Mann. The parties are due back in court the day before for a separate matter.
Bianchi and Carrillo were in attendance at the Lakeport courthouse Wednesday, but Johnson was absent, having waived his right to appear. All three defendants remain out of custody.
Attorneys Patrick Ciocca, who represents Johnson, and Jai Gohel, who represents Bianchi, were also present.
Jeremy Walsh is a staff reporter for Lake County Publishing. Reach him at 263-5636, ext. 37 or jwalsh@record-bee.com. Follow his court coverage on Twitter, @JeremyDWalsh or #Lakecourt.
