The San Bernardino County District Attorney’s Office is running out of options as the viability of a successful prosecution against 18-year-old Sebastian Bailey Villaseñor on attempted murder charges has dimmed to virtual nonexistence and both he, his family and his legal defense team are not disposed to accepting any sort of plea deal on lesser charges, given the treatment accorded him thus far.
A string of miscues and miscalculations, exacerbated by miscommunication between District Attorney Jason Anderson, one of his supervising deputy district attorneys and one of his deputy prosecutors has created a situation in which what might have been the most logical resolution of the matter – having the autistic high school student obtain the mental health treatment those around him virtually universally agree he is in need of – is becoming increasingly unlikely. Having overcharged the youth with crimes, the elements of which both investigators and several deputy prosecutors now acknowledge cannot be established as having occurred, and subjecting him for three months to incarceration with a host of hardened criminals without any prospect for release, prosecutors are now confronted with the recognition that the shortsighted cure they autocratically insisted on applying has created a confounding legal and social circumstance that cannot be untangled without shedding discredit on both Anderson and the prosecutor’s office.
Villaseñor, of Eastvale, was a senior at Ontario Christian High School when he was arrested on February 10 on suspicion of having violated PC 422(A) – engaging in threats of violence.
The arrest came after Villaseñor’s sister, Isabella Villaseñor, who also attended Ontario Christian, on February 8 spoke with one of the school’s counselors, Mitch Stutz, about an exchange she had that morning with her brother in the school parking lot. When the subject of another student who attended the school came up, Isabella said, Sebastian expressed irritation, characterizing the coed as “stuck up,” clenching his fists as he did so, and then told his sister not to talk about the other girl.
When Isabella told Stutz about what had happened, she expressed concern about what her brother might do. She added that she knew her brother had access to their father’s firearms and that over the Christmas break she had seen Sebastian posing with some of their father’s rifles in selfies he was taking. When Isabella further stated that her brother obsessively watched videos relating to school shootings available on the internet, Stutz consulted with Ontario Christian High School Principal Benjamin Dykhouse.
Thereafter, Dykhouse and Stutz decided that the Ontario Police Department should be contacted.
Based on the information provided to the department by Dykhouse, detectives with the Ontario Police Department obtained a warrant to examine Sebastian Villaseñor’s on-line and social media activity.
By February 10, the investigators assembled an arrest warrant for Sebastian on the grounds that he had “engaged in threats of violence” along with further warrants to search the Villaseñor premises at 7940 Tallow Tree Circle in Eastvale.
Upon the serving of the search warrant at the Villaseñor residence, a 5 bedroom, 3,201-square foot home located at the end of a quiet cul-de-sac, Ontario Police found three handguns, seven rifles, a shotgun and more than 1,000 rounds of ammunition.
Upon gaining access to the computer at the Villaseñor residence that the teen used as well as the high school senior’s communication devices, detectives accumulated a more substantial array of Sebastian Villaseñor’s expressions of adolescent angst along with a window on the internet searches he had carried out, the data he had collected and the media he had watched, as well as the photos Isabella had alluded to.
It appeared that young Villaseñor was somewhat embittered over his inability to get many of his peers to reciprocate his interest in establishing social relationships with them and was not handling what he saw as rejection well. A more dramatic interpretation of the evidence the investigators had amassed was that he was bound and determined to avenge that rejection and was on the brink of violence toward those who had snubbed him.
Given his access to his father’s guns, the consideration that among the items Villaseñor had incessantly watched on YouTube and other video channels were accounts of or relating to the February 14, 2018 shooting at Marjorie Stoneman Douglas High School in Florida and the April 20, 1999 shooting at Columbine High School in Colorado, it was projected that he was intent on carrying out a mass slaughter of his schoolmates, potentially on the anniversary of one of those shootings. With the six-year marking of the Stoneman Douglas massacre just a few days away, in action the involved agencies – the Ontario Police Department swooped in and arrested Villaseñor. Rather than doing so quietly, however, Villaseñor’s arrest was writ large in the media, with Ontario Police Chief Michael Lorenz, whose $536,696.88 in total compensation makes him the highest paid police chief in San Bernardino County, exploiting what he was a golden opportunity to generate a positive perception of his department, whose officers likewise receive the highest level of pay among the county’s law enforcement officers, taking center stage at a press conference in which he insisted the men and women under his command had averted widespread carnage. Citing what in the light of a more sober evaluation since appears to be flimsy evidence, Lorenz said Villaseñor was choreographing a precisely calculated hit involving five specific individuals that could be effectuated within a strict timeframe.
Dastardly, Lorenz asserted, Villaseñor had engaged in painstaking research and was plotting out in advance a way in which he could elude arrest or having to deal with the police response in the aftermath of the mayhem he was planning, in order to escape and avoid being identified as the perpetrator.
With Lorenz having gotten ahead of the actual facts of the case and engaging in the aggrandizement of the police department, neither of two other crucial cogs in the law enforcement team to whom responsibility for shepherding a criminal case against Villaseñor through the court system – District Attoreney Anderson and one of his supervising deputy district attorneys, Joe Gaetano – made an effort to moderate or deescalate the frenzy and deal with it quietly and outside the glare of intense public scrutiny, instead doubling down and compounding what Lorenz had initiated.
A decade prior to his 2018 election as district attorney, while he was yet a younger deputy prosecutor, Anderson had been an Ontario City Councilman. Even as the case against Villaseñor was taking shaping, he had familiarized himself with the less than fully-assembled facts, which indicated that an embittered and spiteful student with a small arsenal was about to shoot up a high school. Some mid-range prosecutors heard Anderson saying something to the effect that the prosecutors to be assigned to the case should give the Ontario Police Department full support with regard to the case.
As more information about what had and had not occurred at the high school became available, at least some deputy prosecutors relatively early on recognized that the attempted murder charges against Villaseñor were not viable. They believed that Anderson, too, understood that Villaseñor had taken no actual action that might be construed as homicidal. Three months late, it is now seen that the district attorney’s his attention to important aspects of the case was quite cursory and concluded before all of the details relating to the matter were available. Moreover, members of the police department did not appreciate to the extent that the lawyers did the need for the minimum necessary elements of attempted murder to be folded into the case ultimately presented to the court.
As the police, with the anniversary of the Stoneman school shooting fast approaching, had acted quickly in arresting Villaseñor, the district attorney’s office raced to draw up the charging documents for his February 15 arraignment in Superior Court. On February 14, 2024, the district attorney’s office hastily lodged one count of PC664/422 – attempted criminal threats and five counts of PC664/187 – attempted murder against him.
At his February 15 arraignment in Rancho Cucamonga Superior Court before Judge Arthur Benner II, Villaseñor was not present but appeared via video from where he was being held, at the West Valley Detention Center. The overwhelmed Villaseñor was being represented by the San Bernardino County Public Defender’s Office at that point but had not yet had direct access to any attorney. He was able to make no cogent response to the charges lodged against him. Judge Benner entered not-guilty pleas on the six counts against him.
Representing the People of California against Villaseñor was Supervising Deputy District Attorney Joe Gaetano, who in keeping with Anderson’s edict that full backing be given to the police department asserted that the defendant had attempted to murder four young women and one young man, while attempting to threaten another young woman and that Villaseñor should continue to be held without bail. Villaseñor, Gaetano said, “poses a great danger to the community.”
Without martialing any specific evidence, Gaetano hinted the field of Villaseñor’s field of possible victims was much larger than those six people, extending perhaps to cozens or scores of students at Ontaro Christian High School.
The demonization of Villaseñor was in full swing. Lost in the hoopla was that he was, in actuality, an autistic teenager unable to fit within the social fabric of any of the high schools he had attended. As an 18-year-old, he remained incarcerated within the general population at the West Valley Detention Center, among actual murderers, thieves, armed robbers, drug dealers, rapists, gang members, con men, all of whom were older than he was, with varying degrees of time – one, two, three or four decades – to define, intensify and refine their criminality. If he had been overmatched in reading the social cues among adolescents at Ontario Christian High School, he would find existence among his current set of associates incomparably challenging.
Ultimately, Villaseñor’s father, Jose Ramiro Villaseñor, would retain Daniel DeLimon, a former homicide prosecutor with the Riverside County District Attorney’s Office, to represent his son.
Inevitably, DeLimon, in examining the case against young Villaseñor would discover that there was no real substance to what virtually everyone aware of the case had assumed was a connection between the single charge of making criminal threats and the five attempted murder charges. Implied from the outset was that an explication of the threat – whatever it had been – when detailed would unlock the explicit facts relating to Villaseñor’s thwarted effort to kill at least five people and perhaps even more grandiose plans of murderous intent. What would soon become apparent was that there was no connection, and that the threat was so embarrassingly thin as to be virtually nonexistent.
At Villaseñor’s preliminary hearing held before Judge Shannon L. Faherty on April 11 and April 16, Dykhouse, Stutz and Isabella Villaseñor testified, followed by officers and detectives with the Ontario Police Department, including Jake Arakawa, Elizabeth Fries, Edmund McCorkle, Manuel Bonilla and Albert Alvarado. Villaseñor’s scribblings on a piece of yellow paper, photos or images referred to as “thumbnails” relating to the Columbine shooting, bom making and tactical outfits taken from Villaseñor’s cellphone or the Villaseñor family computer were introduced as evidence.
It was revealed that the object of the criminal threat was none other than Isabella Villaseñor. In her testimony Isabella Villaseñor’s testimony undid much of the case against her brother by revealing that the “threat” cited in the case was a threat identified by Ontario Christian High School counselor Mitch Stutz and then Principal Benjamin Dykhouse in their February 8 contact with the police department. The threat, it turned out, was not as much a threat as it was a report of a threat. The genesis of that report threat, Isabella Villaseñor revealed in her testimony was based upon her brother’s perturbed demand that she stop talking about a girl he was upset with because she had shunned him. The much belabored “threat” that comprised the fundamental act of the whole criminal matter was Sebastian having clenched his fist when he spoke about the girl, Isabella Villaseñor said. She acknowledged that she had seen her brother self-pose for photographs with their father’s firearms four months previously and that he was frequently engaged with viewing videos about school shootings.
There was testimony from two of the detectives, Isabella Villaseñor and both Stutz and Dykhouse touching on Villaseñor’s suspected autism. At times during testimony, the term “on the spectrum” was used, meaning autistic or hemmed in by developmental or cognitive disorders previously diagnosed or referred to as Asperger syndrome, childhood disintegrative disorder, Rett syndrome or pervasive development disorder. Stutz and Dykhouse said that Sebastian Villaseñor, who had been at Ontario Chirstian High School for two years, did not exactly “fit in” with, or was “different” from, other students. Despite the district attorney’s office’s identification of the five students Sebastian Villaseñor was targeting for death – four girls who had declined Villaseñor’s offer to take them on a date and the boyfriend of another girl in whom Villaseñor was interested – none of the detectives was able to marshal any specific evidence that the defendant had acted on carrying out the action prosecutors alleged it was his intent to engage in. Nor had Sebastian Villaseñor uttered any threat to those individuals.
For hours upon hours, it was revealed at the preliminary hearing, the detectives working the case had unfettered access to the cognitively-challenged Villaseñor outside the presence of his parents or legal counsel, during which they were able to structure the nature and terms of the dialogue with Villaseñor by focusing on what they insisted was his plan to go on a shooting spree. In this way, it came across that shooting up the Ontario Christian High School campus was their invention rather than his. By challenging Sebastian Villaseñor about the dismal prospects that he would be able to pull off the massacre, they pressed him to tell them how he would overcome the obstacles to that success, how he would get the gun and the ammunition he needed onto the campus, what vantage he would take when he opened fire, where he would position his car to expedite getting onto the school grounds and then make his getaway, how he would take on or avoid responding police officers. Many of the answers Villaseñor gave to these loaded questions, ones which by their very nature were implicative no matter what response was ventured, were then used to imply his guilt. Nevertheless, despite his intellectual or cognitive disadvantages, Villaseñor managed to outfox his interrogators by simply abnegating the premise of such questions by saying, “I didn’t” or “I didn’t think about doing that” or “I wasn’t thinking of doing that” or “I didn’t think that far ahead.” This, ironically, illustrated just how far out in front of themselves the investigators had gotten with their theories of Villaseñor’s culpability and the lack of analysis that the district attorney’s office had brought to the evidence or lack thereof thus generated.
An explicit demonstration of the dead end the prosecution was pursuing was made when DeLimon questioned the lead investigator, Detective Albert Alvarado, who had the advantage of hearing the testimony of all of the other detectives on the case. Despite Alvarado’s comprehensive knowledge of the case, he was unwilling, while under oath, to catalog any of the five students Villaseñor was allegedly targeting as actual victims. The closest he got to identifying anyone as a victim in the case was Isabella Villaseñor, based entirely on Sebastian Villaseñor’s expression of hostility, while they were in the school parking lot, toward the girl who had disregarded him. When DeLimon pressed Alvarado on whom Villaseñor victimized, the detective said, “I’d say he threatened Ontario Christian High School.”
DeLimon told Judge Faherty that the entire case is devoid of any overt acts or the necessary components of murder attempts or even a single murder attempt. “He had done nothing — nothing — to prepare” to carry out any murders, DeLimon asserted.
District Attorney Debbie Ploghaus, who had been entrusted by both Anderson and Gaetano with moving the case against Villaseñor after its marquee build-up through the preliminary hearing to trial and conviction pressed forward, with the strongest evidence she presented being Villaseñor’s apparent fascination with guns and past school shootings as evinced by his internet and/or cellphone searches, which touched on such topics as tactics used in shootings, firearms, body armor and what type of bullets could pierce them and police response times. Such attention to detail, Ploghaus said, was tantamount to an overt act. Ignoring that investigators were unable to demonstrate even a single physical act that Villaseñor had taken toward killing anyone, Ploghaus without clarifying whether the figure she cited referenced the number of algorithmic responses to a single or a series of searches said that an Ontario police detective came across 4,500 downloads, thumbs, images, texts or searches relating to school shootings. This constituted proof Villaseñor was “obsessed” with the subject, she said. The selfies Villaseñor took in the tactical gear and with his father’s rifles constituted, Ploghaus said, “a dress rehearsal” of the murders of the five students she said he was targeting.
Judge Faherty, who was formerly a prosecutor with the San Bernardino County District Attorney’s Office and one of Ploghaus’s colleagues for nearly 12 years, ruled that Villaseñor’s thoughts could be ascertained by his on-line activities and that thoughts at some point become tantamount to plans and action. Without identifying any specific acts actually perpetrated by Villaseñor, Judge Faherty said she felt “nervous” things would have spiraled into mayhem if Isabella Villaseñor had not come forward to speak with Stutz, as Villaseñor was involved in “a continuous course of conduct” leading toward “an actual plan.” She bound Villaseñor over for trial on the five attempted murder charges.
Nevertheless, the count of making threats of serious bodily injury against a sixth victim – which the preliminary hearing had revealed was Sebastian Villaseñor’s sister, Isabella Villaseñor, and was based simply on Sebastian Villaseñor clenching of his fist when he was talking to his sister about the girl who wouldn’t give him the time of day, was dismissed.
That Sebastian Villaseñor might conceivably constitute a danger to others and that he is in need of some assistance in overcoming his autistic challenges has not been subject to dispute. What is now apparent to many and was previously recognized by others is that subjecting him to a criminal prosecution, particularly on charges that are inapplicable to the facts of the case and were constructed for the purpose of promoting the Ontario Police Department, is going to prove counterproductive. There are grumblings within the district attorney’s office that District Attorney Anderson should have never let it come to this.
In California, the statute that covers a criminal attempt is Penal Code § 664 PC. According to the law, an attempted crime occurs when an individual, a would-be perpetrator, tries to achieve some specifically outlawed end or goal but does not achieve that clearly defined objective. Actuating an attempted criminal act, even though the attempt is not moved through to completion, meets the requirements of criminality under Penal Code § 664.
Genuine criminal attempts generally are met with a punishment or penalty that is equal to one-half the sentence as that for the crime that was attempted but not actually perpetrated.
Under California law, attempted murder consists of a failed attempt at killing someone, involving physical action taken in which the explicit intent was to kill but which failed, such as a perpetrator shooting, stabbing or unleashing what could be deadly force upon someone, irrespective of whether the intended victim or victim is actually shot or stabbed or hit or not, where the target yet survives. Planning a murder does not suffice as attempted murder until such a plan is actuated, according to legal authorities.
To obtain a conviction under Penal Code § 664, a prosecutor must prove two things to convict the defendant, those being 1) the defendant intended to violate a specific section of the penal code and 2) the defendant performed a “direct act” relating to committing that crime. Such a direct act must entail an actual step – some physical action – toward committing the crime. Thinking about a crime or planning a criminal action or preparing to commit a crime does not constitute a direct act. An actual step must indicate a definite intent to commit the criminal offense and involve an immediate action which initiates the offense.
Even if a plan to violate the law has been made, no offense under PC § 664 occurs if no act in furtherance of the planned crime takes place or if the plan is abandoned without any action taking place.
Under the most reasonable and logical of application of the law, a criminal attempt entails the criminal party initiating action relating to the crime in question but discontinuing before completion of the act either because circumstance or the intended victim thwarts the attempt or the perpetrator himself desists on his own without fulfilling the criminal objective.
Ploghaus will now need to go to trial without having any evidence of an overt act on Villaseñor’s part.
As early as February, some of Anderson’s own deputy prosecutors as well as former prosecutors and defense attorneys active locally observed that the case against Villaseñor was being inflated beyond what the facts and the letter of the law supported. Judge Faherty’s ruling binding Villaseñor over for trial on the five attempted murder charges is what one prosecutor referred to as “a gift,” but one which will keep on giving headaches and discredit to the office, some of Ploghaus’s colleagues acknowledge.
Those attorneys told the Sentinel that unless “another charging scheme is substituted before this goes to trial,” the case against Villaseñor “is going to fall apart.”
Belatedly, the Sentinel is told, meaning after the beginning of May, District Attorney Anderson refocused on the case and was given enough of a briefing for him to understand that no overt acts on Villaseñor part could be demonstrated and that the sole charge other than attempted murder – making criminal threats – had been dismissed. An effort was quietly initiated to see if a plea settlement short of trial could be obtained. As is often the case, such negotiations start with an unrealistic offer from which a more realistic middle-ground deal can be arrived at. What the district attorney’s office was offering, however, was a hamfisted continuation of the arrogant position it had taken all along, one in which Villaseñor would simply plead to a single count of attempted murder, his sentence would be set at the time he had already served in jail and he would be given an open-ended probation which would entail him participating in a mental health treatment until such time as prosecutors were satisfied that he no longer represented a threat to the community.
To DeLimon, whose position all along had been that Villaseñor was not guilty of any crime, let alone what he had been charged with, and intimately knew the weakness inherent in the case prosecutors had saddled themselves with, was not willing to accept anything even remotely resembling what was being offered.
Indeed, the only remaining leverage the district attorney’s office possessed consisted of the terms under which Villaseñor was being incarcerated – in the general population with out bail. Yet, even that was working against Anderson, as he and his office had proven impervious to requests that the young man’s vulnerable state be taken into consideration when Gaetano had insisted that he should continue to be held on a no bail hold. The inconsistency of maintaining, on one hand, that Villaseñor constituted so a great a threat that allowing him to leave jail would be unconscionable and, on the other, that he could now be unleashed upon society without being incarcerated, was ludicrously apparent. The only positive inducement the district attorney’s office had to offer is that Villaseñor will be released from the inappropriate holding conditions that the district attorney’s office insisted upon imposing on the youth.
DeLimon turned down the offer, signaling he is ready to go to trial, as scheduled, on June 3 before Judge Joseph Widman, or, alternately, June 10 before Judge Jon Ferguson.
The district attorney’s office came back with another offer. If DeLimon would convince his client to plead guilty to assault with a weapon compounded with a sentencing enhancement of using a firearm during the commission of a crime, the prosecution would ask for not “no jail time.” Reportedly, an incensed DeLimon rejected that offer immediately, expressing in firm terms that no crime had occurred, that assault with a firearm was an entirely fictional, indeed manufactured allegation, and it would not be accepted.
He remains committed to putting a defense on for his client at trial against the current charges or whatever new charges the prosecution brings.
Asked what alternative charging scheme Anderson, Gaetano and Ploghaus could substitute for the attempted murder counts or assault with a firearm, a prosecutor told the Sentinel, “I’m not sure. Based on the facts, maybe some order of wanton indifference. But probably on that, you’d need some overt act, so you’re back to where they started.”
Under California law, wanton indifference refers to a course of action that demonstrates an actual or deliberate intention to cause harm or, if not intentional, shows an utter indifference to or conscious disregard for the safety of others. In essence, the crime of wanton indifference involves behavior that is either deliberate or so negligent and lacking in concern for others’ well-being that it warrants criminal liability similar to that imposed on someone who intentionally commits a crime.”
-Mark Gutglueck