Prosecution In Merritt Murder Case Shuns Own Expert Witness On Truck Match

Prosecutors in the McStay family murder trial this week reconsidered the wisdom of utilizing as a witness a respected scientific expert the state had retained at considerable expense after his analysis of the defendant’s vehicle failed to provide a conclusive match with the image of a vehicle caught on a security video near the victims’ home on the same day and at around the same hour investigators believe the brutal murders occurred more than nine years ago.
Instead, they opted to have a sheriff’s sergeant who is the current case agent for the investigation testify that in his non-scientific analysis and opinion there is a rough correspondence in the image of the lower portion of a truck or SUV caught on the video and a sophisticated laser photography rendering of a Chevrolet pick-up truck that was converted into a utility vehicle that Charles “Chase” Merritt owned at the time of the murders.
Placing Merritt at the McStay Home located at 3473 Avocado Vista Lane in Fallbrook on the evening of February 4, 2010 is a crucial element of the highly circumstantial case against Merritt that the prosecution team of Supervising Deputy District Attorney Britt Imes, Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez are seeking to sell to the jury.
According to the prosecution’s theory of the case, Merritt, through fraud and embezzlement, was pilfering thousands of dollars from his business associate’s company. Merritt manufactured high-end decorative water fountains and artificial waterfalls which Joseph McStay was selling through his company, Earth Inspired Products. Prosecutors have presented evidence which they believe indicates Merritt on February 1, 2010 gained unauthorized access to one of the QuickBooks accounts for Earth Inspired Products and issued himself a check against the company’s account for $2,500 and on the following day, February 2, 2010, again obtained unauthorized access to the Earth Inspired Products account through its QuickBooks accounting system and issued himself another check, one for $2,495.
When he learned learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Joseph McStay traveled to Rancho Cucamonga, where Merritt was then living and confronted him about his larceny, threatening to alert authorities, prosecutors allege. After Joseph McStay returned to San Diego county, the prosecution’s theory continues, Merritt later that afternoon or early that evening drove to the McStay residence in Fallbrook where he killed Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr.
Merritt then secreted the bodies for two days, in the meantime again fraudulently accessing Joseph McStay’s QuickBooks account for Earth Inspired Products, the prosecution maintains, and on February 4, 2010 issued a check made out to himself for $4,000 and three others on February 5, 2010, each of which was written to himself and backdated to February 4, one for $4,500 and another for $6,505 and a third for $2,350. Shortly after the murders, the prosecution alleges, Merritt embarked on a gambling binge at a number of casinos throughout Southern California. His gaming frenzy was punctuated only by his transporting of the corpses of the McStay family up into San Bernardino County’s High Desert, an area with which Merritt was familiar since having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s, where on February 6, 2010 he buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road. Also on February 8, Merritt again accessed Joseph McStays QuickBooks accounting system for Earth Inspired Products, making another check out to himself, this time for $6,500, backdated to February 4, the prosecution claims. To confuse the situation, throw authorities off his track and delay a serious investigation into the matter, the prosecution maintains Merritt then drove the McStay family’s 1996 Isuzu Trooper, which yet contained the child seats for Gianni and Joseph, to San Ysidro, where he left the vehicle in a shopping center parking lot roughly a quarter of a mile from the Mexican border.
The challenge facing Imes, Daugherty and Rodriguez is there is no single overarching element to the case that bespeaks guilt on Merritt’s part. Rather the case is a wholly circumstantial one, comprised of a series of incriminating factors that are highly elliptical in their nature, requiring that they be strung together in a manner consistently interpreted in the same light in order to color the defendant as guilty. The prosecution has insisted that the tangle of disparate facts, upon being assembled in the precise order as they should be, will put everything into perspective that will permit no other conceivable conclusion than that the defendant, acting out of greed and desperation, massacred Joseph McStay, his wife and the couple’s two children, using a three-pound sledgehammer to bash their skulls in.
At each stage of the prosecution’s presentation of that evidence, Merritt’s defense attorney’s, Raj Maline and James McGee, have sought, and in some measure succeeded, in offering for the jurors a far more benign reckoning of the facts and Merritt’s actions established by the prosecution, while casting doubt with regard to some of the basic premises of the allegations against Merritt altogether, such as the prosecution’s insistence that the defendant was at crucial locations in keeping with the equally crucial timelines in the narrative of guilt the jury must accept to convict Merritt.
One such element of the prosecution’s case is definitively placing Merritt at the McStay family home on the night of February 4, 2010. There is very strong evidence suggesting that the family was murdered that evening. The foremost indicator is that at 8:39 p.m. that night the last phone call placed from Joseph McStay’s cell phone was made. McStay was prolific in his cell phone use, typically making and receiving 40 or more calls daily. The abrupt ceasing of his cell phone use, absolutely unprecedented and entirely out of keeping with his established pattern, is an indisputable anomaly that lends itself to the reasonable conclusion that he was dead within hours, most likely, if not minutes, after that call was made, incidentally, to Merritt’s cell phone. There were no credible sightings of the family thereafter. And the family’s dogs, which were beloved by the family and kept within the house, had been left neglected in the house’s backyard around that time.
Prosecutors had been banking on Dr. Leonid I. Rudin, one of the world’s leading photogrammographers, being able to offer testimony that would leave no doubt that Merritt was at the McStay residence that fateful night. Possessing a master of science degree in mathematics and a PhD. in photography, Rudin is arguably the world’s leading authority on photographic analysis. He holds 31 patents, including ones for a system and method for pattern detection and camera calibration, registration and comparison of three-dimensional objects, a video data compressor with very high data rate, a real-time three-dimensional videoing system, a system and method for determining geo-location(s) in images, a system and method for image and video search, indexing and object classification, registration and comparison of three dimensional objects in facial imaging, video demultiplexing based on meaningful modes extraction, a system and method for three-dimensional estimation based on image data, object recognition based on two dimensional images and three dimensional models, image frame fusion by velocity estimation using region merging and an apparatus for enhancing signals such as images, speech, remotely sensed data, medical, tactile, radar and audio.
Put concisely, Rudin’s skills in using forensic media image processing using the software and techniques he has himself derived, were thought to be capable of determining whether the image of a vehicle captured by a video camera at the home of Jennifer Mitchley, who lived two doors up and across the street from the McStay Home in the 3400 block of Avocado Vista Lane in Fallbrook on the night of February 4, 2010, was or was not that of Merritt’s truck.
After applying his analysis of the video images and a three dimensional image made by San Bernardino County Sheriff’s Department scientific analysis division technician Michael Russ using a laser scanner known as a FARO at the direction of San Bernardino County Sheriff’s Sergeant Ryan Smith, Rudin’s determination was inconclusive. On February 5 of this year, during an evidentiary hearing held outside the presence of the jury, Imes asked him what his conclusion was.
“The answer was we could not reject it, but there was some guarded error that we derived,” said Dr. Rudin. “In this case we derived a certain error that I would say if it grew somewhat more I would be skeptical about this hypothesis, but it was sort of right on the border. So I could not reject. It was within the accepted error at the border of that.”
With the image of Merritt’s truck caught by the sheriff’s department’s FARO laser scanner at the same angle as the angle of the Mitchley video camera to the subject vehicle serving as the background of an image projected on the courtroom’s video monitor, a transparency of the Mitchley video was projected across the background during the February 5, 2019 hearing. When the moving vehicle’s image moved into position corresponding to the background image, the video was frozen, with that portion of the truck visible on the video superimposed over the three-dimensional model of the truck.
Rudin said, “I could not eliminate the model as corresponding to the vehicle captured on the video but could not make an identification that it was definitely the truck.”
Rudin further indicated that when his software program and equipment were utilized to take readings of the truck’s wheelbase, he received conflicting results, a discrepancy, he said, of “up to six percent in the worst case scenario and roughly 3 percent in the average scenario. No matter how we used that truck, we were getting plus-minus. So, what concerned me was the larger error, which if it went beyond to seven-eight percent and it was consistent, I would say it is a test fail, but at this point I would say no test fail.”
A precise determination of the truck’s wheelbase is critical to the case, in that two sets of tracks were found at the site of the McStay family graves, one with a wheel base measuring 73 inches, which roughly, according to prosecutors, matched the wheelbase of Merritt’s truck. The other set of tracks at the gravesite measured 76 inches across.
On February 5, 2019, Judge Michael A. Smith, over the defense’s objection, ruled that Rudin could testify. He was scheduled to do so on February 19, but that date came and went and he never appeared as a witness. With the prosecution’s side of the case winding down, he had not appeared. This week, on Monday March 4, the prosecution instead elected to have Sergeant Ryan Smith testify with regard to his non-scientific observations and the conclusion he had personally reached that the image on the Mitchley video is a match to the Chevrolet work truck Merritt was driving in 2010. Smith, who as the case officer on the McStay family homicides and the sheriff’s department liaison with the district attorney’s office on the matter, has testified a half dozen times previously in the case. Before the jury was called in to hear from him on Monday, the prosecution and defense attorneys debated before Judge Smith the propriety of allowing Sergeant Smith, who is no blood relation to the judge, to testify. For that purpose, Smith was called to the witness stand to make statements under oath, despite the jury not being in the room.
Sergeant Smith testified that he had used the FARO scanner in accident reconstructions to make precise photographic records of vehicles before he became a homicide investigator, and that since coming into the homicide division he has used it in investigating murders and officer involved shootings.
He said he had overseen a FARO scan of Merritt’s truck in 2014 and had done a second one on February 18 and 19 of this year. He testified he conducted those scans with the lights both on and off.
Attempting to establish that the sergeant lacked the expertise to do the analysis he was being called upon to perform which would have been better carried out by someone with Rudin’s level of expertise, Merritt’s defense co-counsel, James McGee, asked him, “How does the FARO scan the lumens intensity of the light that is being captured?”
“Objection, relevance,” protested Imes.
“Overruled,” said Judge Smith
“That would be a technical question for someone who knows how to service and process those,” said Smith. “My experience with FARO is how to operate it, how to make sure it’s in working order, how to process the scans after they’re done. So, I don’t know the intricacies of the specifications.”
“You can’t testify foundationally how the FARO records or processes data on the lumen intensity of any light being captured?” McGee pressed.
“No, sir, I couldn’t testify to that,” said Smith.
“You’re honor it would be the defense’s position this witness does not have the necessary knowledge to lay the foundation to be a true and accurate foundation of the FARO images since he cannot testify as to the lumens issue as to the intensity of light as demonstrated on the FARO screen,” said McGee.
McGee pointed out that Michael Russ, the sheriff’s evidence technician who had carried out the FARO scanning of Merritt’s truck at Sergeant Smith’s direction, had specific and in-depth training with regard to the use of the laser scanner. Russ, McGee said, had previously testified that “one of the difficulties of FARO scans are when they are detecting things that are reflective, which would be headlights because the laser does not bounce off those well and capture that image very well. And so that becomes a major issue. A major contention in this case, and the court has heard us say it, is ‘This can’t be our client’s vehicle because you have to have those parking lights, the running lights, going when the headlights are on. They’re not shown in the video. If they get to show a FARO scan next to it without those parking lights as illuminated as brightly as they would be with the headlights [on], that’s a misrepresentation of the facts and a misrepresentation of my client’s vehicle. So, they’re trying to pull the wool over the jury’s eyes to say we have this issue, so let’s just eliminate that issue by presenting photographs that don’t accurately represent the state of my client’s vehicle as it would be shown in that video.”
Judge Smith, however, told McGee, “I think there is sufficient foundation to allow that testimony and those exhibits.” He ruled that Sergeant Smith could present the Faro scans of Merritt’s truck in comparison to stills taken from Mitchley’s security video and that the defense could make an issue of Sergeant Smith’s scientific credential as it saw fit so the jury could put his impressions in perspective, and the jury could determine “the weight to be given” to the sergeant’s testimony on the issue.
With the jury present and led by Imes’ questioning, the sergeant testified that the black and white and grainy images of the Mitchley video stills, which capture the street below the vehicle as well the bottom and middle of vehicle but not the topmost part, as the vehicle appeared to turn into what is calculated to be the McStay family home’s driveway at 7:47 p.m. on Feb. 4, 2010, show a vehicle which appears consistent with the Merritt’s truck. In illustrating that consistency for the jury, Imes displayed the FARO scans of the truck and the stills from the video on the courtroom’s visual monitors. Some of what were displayed were side by side comparisons Sergeant Smth had prepared to accompany his testimony. He testified that there was similarity with regard to the front of the images of the vehicle[s] as well as a close similarity with regard to the back of the vehicle[s], including the exhaust pipe.
Sergeant Smith testified that he merely shot the images of the truck using the FARO scan to capture it from different angles, having made an effort with just one of the depictions to mimic the angle of the Mitchley video camera to the truck. He testified that he saw similarities with regard to the way the brake lights illuminated the ground below the vehicle in both the FARO scan and the video.
McGee cross examined the sergeant.
Comparing the illustration prepared for the jury containing the FARO image side-by-side with the still from the Mitchley video intended to show the similarity between the tailpipes, McGee confronted Smith about a light visible on the side and near the rear of the vehicle in the image captured on the Mitchley video that was not present on the FARO scan of Merritt’s truck. That lighted area appeared to be positioned on the side of the vehicle on a tangent almost directly above the end of the tailpipe. When Smith suggested the light was a “reflection,” McGee said, “It’s a reflection. Is that not the same light that goes all the way through when the vehicle drives?”
“Objection, misstates his testimony and assumes facts not in evidence,” interrupted Imes.
“Overruled,” said Judge Smith.
“No, sir, if you watch the video, you will see it dim and change,” said Sergeant Smith. “However, you can notice it in multiple frames.”
“And what is the lighting source for that reflection?” asked McGee.
“Well it could be – this is speculation on my part…” Sergeant Smith began.
McGee stopped him short. “Do you know?” he asked.
“I believe it to be the brake lights or the Mitchley porch light,” said Sergeant Smith.
“So the Mitchley porch light is shooting that direction and hitting an object that is facing away from it and the reflection is coming right back at you?” McGee pressed.
“Objection, assumes facts not in evidence,” said Imes.
“Overruled,” said Judge Smith. “He can answer.”
Sergeant Smith asked for the question to be repeated.
“You’re saying that something on that truck had a light coming from the Mitchley residence, when it pulled out of the [McStay home] driveway once that item became visible below the roof of her porch, that it traced and came all the way across that video reflecting back when it’s not perpendicular to that item?” McGee restated the question in a somewhat different and more turgid form.
“Objection, argumentative as phrased and calls for speculation,” said Imes.
“That question does call for speculation and conclusion, so the objection is sustained,” said Judge Smith.
There followed an effort by McGee, using the FARO scan that best approximated the angle of the still frame of the vehicle image isolated out of the Mitchley video to make a showing that the light seen emanating from near the back of the vehicle did not match any potential source of light or reflection on Merritt’s truck depicted in the FARO scan.
“Isn’t it true that the exhaust [pipe] on the angle you tried to represent is below that seam for that back cabinet?” McGee asked.
“From that angle, yes it is sir,” said Sergeant Smith.
“And so, based on the other highlight that you did in the Mitchley video, the exhaust pipe is either right below or to the left of whatever that reflecting item is,” said McGee. “That does not match up to the truck here, correct?”
“I think you’re misrepresenting a little bit, so I would clarify that this is from an angle from the front, off and away,” said the sergeant. “But as I told you guys initially, I don’t have the ability to place the FARO scan where the Mitchley camera is.”
Sergeant Smith said he thought the source of the reflection might have been the latch to the storage cabinet on the truck body.
Smith acknowledged that the truck, including its cabinet and cabinet latch, which had since 2010 been painted white, was a gray color in 2010.
“The latch -” McGee began, “What color was it in 2010?”
“I don’t know,” said Sergeant Smith.
“That latch – You said in 2019 you scraped off the paint?” asked McGee
“I didn’t scrape off all the paint, but, yes, I scraped to see what was underneath.” said Sergeant Smith.
“And it wasn’t chrome?” asked McGee.
“It is not chrome, no” said Sergeant Smith.
“It’s just flat metal?” asked McGee.
“Yes,” said Smith.
“Do you know what color the rear portion of that vehicle was painted in 2010?” asked McGee.
“It was gray,” said Sergeant Smith.
Sergeant Smith acknowledged there was no reflection apparent off the rear of the truck in a photo taken in 2010.
McGee then displayed on the courtroom’s visual monitors the side by side comparisons of the FARO scan and the still from the Mitchley video, noting that the end of the tailpipe appeared to be significantly to the right of the vertical axis upon which the latch in the FARO scan was located while the point of illumination or reflection on the video still appeared to be directly over the end of the tailpipe.
Smith testified that there was a different housing for the brake lights on the truck in 2010 than was on the truck in 2019.
McGee asked, “Did the FARO scan reproduce the lumens rate contained in the video?”
Smith said, “I am not technically savvy enough to know the lumen rates for the FARO as they relate to the car. I can tell you it’s an accurate depiction of the vehicle with the lights on as I saw it.”
“But you don’t know if the intensity of the light is consistent or accurate with an identical presentation,” McGee pressed him.
“I don’t know what you mean as far as identical presentation,” responded Smith.
“Based on how this truck is being presented, McGee began, “you don’t know if the brightness of the lights is perfectly accurate?”
“The best I can tell you is they are accurate as I saw them,” said Smith. “There may be some technical aspects I am not familiar with.”
McGee then moved onto another discrepancy between the images. Merritt’s truck has both running lights and headlights, which are distinct from one another, with the much thinner but slightly wider running lights on the front of the truck beneath the headlights and separate from them. When the headlights on Merritt’s truck are on, the running lights come on automatically and cannot be turned off as long as the headlights are engaged. The vehicle depicted on the Mitchley video does not appear to have running lights. Referencing the FARO scan of the truck, McGee asked Smith if “The edge of the headlight does not go out as far as the parking light?”
“I guess it depends what you are referring to as the headlight,” Sergeant Smith said. “The housing does go as far, but the actual illuminated portion does not.” Sergeant Smith conceded.
“The headlight ends, actually, two-thirds of the way to the end of the parking light, correct?” asked McGee.
“Correct,” Smith said. “The headlight ends at two thirds of the housing of the entire length.”
“So if you were to see the headlights in the Mitchely video, you would expect to see that parking light sticking out a little bit farther from that side, correct?” asked McGee.
“Objection,” said Imes. “Calls for speculation.”
“The objection is sustained because the [question] is assuming something to be true that may or may not be true,” said Judge Smith.
Displaying a still from the Mitchley video, McGee said, “There’s no light coming past the edge of the light for the headlight as you identified would be necessary on the FARO, correct?” asked McGee.
“I didn’t identify it would be necessary,” responded Sergeant Smith. “I do see the parking light, but it is being lost in the illumination of the headlights. It is similar to when you see a car driving down the street and you see their headlights. You won’t see their running lights.”
A last exhibit displayed to the jury was a 47-second video clip from a CNN broadcast which aired at the time of Merritt’s 2014 arrest but contained an interview with him done before to his arrest.
Prior to the video being played for the jury, outside the presence of the jury the defense team had objected to Judge Smith that the excerpt consisted of statements that were taken out of context and which did not provide the jury with the full range of their client’s discussion with CNN.
“The CNN video from my understanding,” said McGee, involved the prosecution requesting on “February 21 of this year [this evidence that] shows a limited clip of what was aired and not the complete footage. For everything to be put in context, there has to be a full disclosure of an interview. The people by their request appear to have intentionally limited their request as to what CNN is supposed to deliver, so they can avoid the rule of completeness. That does not show a fairness in the due process discovery for the truth, to allow this type of playing of a recording where it is safe to assume it has been edited. They didn’t ask for an unedited version.”
McGee continued, “They asked for just the part they wanted, and after that, my understanding is it is our responsibility to get the rest of this video from a news organization outside of this state at the end of trial. The defense is required to work through an issue with another entity trying to get the complete record so we can make sure the jury has a full understanding of the interview at the last second. This is just inappropriate. Also the relevance of his statement… I believe the People want to say, ‘Well, Mr. Merritt said he was the last person to see the victim, so obviously, that’s an admission he killed them.’ Well, that’s not what he actually said on the interview. He said “I’m the last person to see him in Rancho [Cucamonga]. That is not an admission. It is a description of the facts we already have. If they’re trying to put a false spin on that, then that would be a misrepresentation of that fact. They’re attempting to misrepresent facts to the jury, which is a lack of candor. The court should exclude this as more prejudicial than any relevance from the statement.”
Imes retorted, “They’ve had notice of this and they’ve known of the defendant’s statements to CNN since they came on to this case.”
McGee repeated that the prosecution “only requested the aired footage,” and he said that without someone from CNN to validate the footage as being unaltered, there was insufficient foundation to permit it to be used as evidence.
Judge Smith, however, rejected the defense’s request to exclude the video, saying sufficient foundation consisted in the statement CNN had provided in response to the subpoena when it turned over the video.
“They’re entitle to put on evidence of what was aired,” said the judge. “I’m willing to advise the jury this is only what was aired. There may or may not be additional comments that were cut or edited by CNN.”
With the jury present, Judge Smith told its members, “CNN, like any other news organization, when they get a subpoena for information, their policy is to provide only that material that actually aired. So, if there is a two hour interview and they only aired 30 seconds of it, they will only give the 30 seconds they aired. So, we don’t know if this is the entire interview or if there was a longer interview and this is only a portion of that. So you can consider that.”
Thereupon the clip taken out of the CNN broadcast, titled “Buried Secrets,” which aired at the time of Merritt’s November 2011 arrest, was played.
Randy Kaye, a CNN anchor, says, “So you say you cooperated a great deal with the authorities. You were questioned by the detectives. What did they ask you?”
Merrrit, who is wearing a cowboy hat, responds, “The standard questions. You know, just did I know anything about them disappearing. Did I have anything to do with it. Just the standard questions they probably asked everybody.”
“As far as you know, you were the last person or one of the last people to see him, right?” Kaye asks.
“Yeah, yeah,” says Merritt. “When he left Rancho Cucamonga, nobody else– I think somebody, there was another person or two he talked to. I’m not sure.”
“You were the last person who saw him,” Kaye says.
“I’m definitely the last person who saw him,” says Merritt, his reference being to Joseph McStay.
Shortly after the video was played, Imes said, “Pursuant to the discussions of the court, the People at this time will conditionally rest, upon the admission of exhibits and the motion to reopen.”
“So that means this basically concludes the case of the prosecution,” Judge Smith then informed the jury, “with the possible exception we have one additional witness that they might be calling in reopening their case or rebuttal.”
The Sentinel has learned that last potential prosecution witness is Eugene Liscio, a leading authority on three-dimensional forensic reconstruction, and an instructor at the University of Toronto and the president of the International Association of Forensic and Security Metrology. Liscio’s testimony, if it is provided, is intended to replace that of Dr. Rudin, and to shore up Sergeant Smith’s comparison of the FARO scans with the stills from the Mitchley video. He is tentatively scheduled to appear on March 12. Immediately after Liscio’s testimony concludes, the defense is to begin its presentation.
After the jury had departed on Monday afternoon, Judge Smith heard a so-called 1118.1 motion brought by the defense, which asserted that the prosecution had not made a sufficient showing, and the charges against Merritt should be vacated.
McGee said that in response the court should “grant an acquittal and dismiss the case and release our client.”
Imes, however, countered that “There is more than sufficient evidence for the court to deny the motion and allow a jury to make a decision on whether or not the People have proved beyond a reasonable doubt that the defendant is the one responsible for the brutal murders of the McStay family.”
Imes propounded, “Not only is there strong circumstantial evidence of motive, there’s strong circumstantial evidence of a means to carry out that crime as well as dispose of the evidence and bury the victims in the gravesite that’s out in the desert, as well as substantial evidence of opportunity to do so, including the burying of the bodies in the desert, the dumping of the Trooper at the border, etcetera, based on the cell phone evidence and the other circumstantial evidence around that, including his DNA in the Trooper, in positions of which would have placed him as the driver, which he denies ever having driven.”
Moreover, Imes said, “The court is aware of the Mitchley video which places the truck with similar characteristics to that of the defendant’s leaving at or about the time or shortly thereafter the McStays really drop off the face of the earth. The cellphone evidence, the tire depression evidence and not to mention moving back around to motive and means, the overriding interest in this case is that every financial transaction that was suspect in this case that was done remotely whether it was done by the defendant or not, but clearly the implication it was, benefited the defendant. All of the suspicious checks were made out to the defendant, several of which, all but one or two of which, he cashed or deposited into his bank accounts. He is the one that benefited from the theft from the victim prior to their disappearance and then after their disappearance. The way the circumstance lay out on February 4, I believe it is clear he had been caught with his hand in the cookie jar, and it’s that that leads to the disappearance on the fourth [of February, 2010], when from 5:30-ish p.m. to 9:23 p.m. he is effectively off the cellphone grid and no one can put his whereabouts anywhere, not at his Rancho [Cucamonga] home, not in a casino, but all of a sudden mysteriously popping up north of the victim’s residence in Mira Loma between the 60 and 91 [freeways]. Based on the totality of the circumstances, the People, we believe, carried our burden and there’s sufficient evidence for this jury to reach a verdict one way or the other. We ask the court to deny their motion.”
Judge Smith, remarking “This is certainly a circumstantial evidence case,” said, “I spent a fair amount of time going though the testimony and exhibits to thoroughly examine the evidence presented. The standard the court uses in ruling on a 1118.1 motion to dismiss is the same to an appellate court ruling on a conviction for sufficiency of the evidence and that standard is that the courts consider all of the evidence and all of the inferences, reasonable inferences, that can be drawn from that evidence to determine if there is any substantial evidence of each element of the offense and, obviously, the identity of the perpetrator. If there is any substantial evidence to support a jury’s finding of guilt then the motion to dismiss should be denied. The court has reviewed the evidence in some detail so the court can say if the jury returned a verdict of guilty, is there substantial evidence to support such a finding.”
After a recitation of much of the testimony and evidence presented by the prosecution from the first day of the trial up until that afternoon, Judge Smith asked rhetorically, “If the jury were to accept the prosecution’s evidence and arguments and analysis and conclusions and conclude that is sufficient proof beyond a reasonable doubt and therefore return a verdict of guilty and thereby at least by inference was rejecting the defense evidence, the defense arguments and the defense analysis, would that decision by the jury be supported by substantial evidence? The points I just went though in the court’s view would support such a finding by the jury. So, the court finds that if the jury accepted the prosecution’s evidence, arguments and conclusions, and returned a verdict of guilty that there is substantial evidence to support such a finding. For those reasons the motion to dismiss on Penal Code Section 1118.1 is denied.”
-Mark Gutglueck

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