A Way Out Of Prosecutorial Dead End In Villaseñor Case?

After cataloging through a multitude of alternative approaches, including a few that skirt ethical boundaries that are as problematic as promising, San Bernardino County prosecutors have at last, it appears, constructed a face-saving solution to the prospect that their case against Sebastian Bailey Villaseñor would evaporate into oblivion.
Villaseñor, 18 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 being haughty and dismissive of his advances, clenching his fist 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 over 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.
Dykhouse and Stutz contacted the Ontario Police Department, and detectives 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 in Eastvale. In serving that search warrant, detectives and officers turned up three handguns, seven rifles, a shotgun and more than 1,000 rounds of ammunition owned by Villaseñor’s father, Jose Ramiro Villaseñor.
Upon gaining access to a computer at the Villaseñor residence and the teen’s communication devices, detectives accumulated a more substantial array of Sebastian Villaseñor’s expressions of adolescent angst, the photos Isabella had alluded to and the internet searches he had carried out and the data he had collected, which extended to how long it would take for the police to respond to the high school from the department’s south Ontario station and if and what kind of bullets would pass through the Kevlar vests worn by police officers. It was clear from young Villaseñor’s postings and communications that he was somewhat embittered over his inability to establish social relationships with his peers and their rejection of him. Given his access to his father’s guns, investigators came to the conclusion that the high school senior was about to embark on a mission to avenge himself on those who had snubbed him. With the anniversaries of 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 approaching, the Ontario Police Department in a full-blown press conference heralded the arrest as one which had narrowly prevented a horrific exposition of hate and carnage, with Ontario Police Chief Michael Lorenz asserting Villaseñor was choreographing a precisely calculated hit involving five specific individuals that could be effectuated within a strict timeframe. “Villaseñor had every intention of carrying out a school shooting at Ontario Christian High School,” Lorenz said.
Neither District Attorney Jason Anderson nor the supervising deputy district attorney overseeing the matter, Joe Gaetano, sought to deviate from or attenuate the narrative that was being perpetuated, which was that officers of the Ontario Police Department gallantly swooped in at the eleventh hour to prevent a homicidal maniac from slaughtering at least five and more likely dozens or even scores of innocent high school students. At one with Lorenz’s exploitation of the circumstance to win accolades for the department he led, the district attorney’s office charged Villaseñor on February 14, 2024, with one count of PC664/422 – attempted criminal threats and five counts of PC664/187 – attempted murder. This was done despite the more sober assessment of at least a few of the office’s more experienced deputy prosecutors that Villaseñor had taken no actual action that might be construed as homicidal and that without at least one overt act by the defendant to try to kill someone, the minimum necessary elements of the attempted murder charges did not exist and that, as such, the case against him was less than viable.
While there was no difficulty at all in getting beyond Villaseñor’s February 15 arraignment in Rancho Cucamonga Superior Court before Judge Arthur Benner II, during which Villaseñor was represented by a deputy public defender, Frank Loo, who had virtually no familiarity with the facts of the case, sledding for the district attorney’s office during Villaseñor’s April 11 and April 16 preliminary hearing, at which point the defendant was represented by attorney Daniel DeLimon, proved a bit less smooth.
Gaetano had set extremely high expectations at the arraignment before Judge Benner when he successfully argued that Villaseñor should be held without bail because the youth, he said, “poses a great danger to the community.” At that point, Gaetano hinted Villaseñor’s field of victims extended beyond the five people he intended to kill and the one other he was charged with threatening to perhaps dozens or scores of students at Ontario Christian High School.
At the preliminary hearing before Judge Shannon L. Faherty on April 11 and April 16, Deputy District Attorney Debbie Ploghaus, who had been entrusted by both Anderson and Gaetano with moving the case against Villaseñor forward after its marquee build-up through the preliminary hearing to trial and conviction, called Dykhouse, Stutz and Isabella Villaseñor as witnesses, followed by the officers and detectives with the Ontario Police Department who had examined Villaseñor’s activities – 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, bomb-making and tactical outfits taken from Villaseñor’s cellphone or the Villaseñor family computer were introduced as evidence.
During her testimony, Isabella Villaseñor revealed that she was the object of the alleged criminal threat the case concerned. That much-belabored show of hostility, which she had related to Stutz and Dykhouse, was her brother clenching his first on the morning of February 8 in the parking lot when he told her to not mention the girl who had spurned one of his advances. She acknowledged that she had also told Stutz and Dykhouse she had seen her brother self-pose for photographs with their father’s firearms in December and that he was frequently engaged with viewing videos about school shootings.
Despite the disclosure of the identities of the five students the district attorney’s office alleged 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 produce any evidence or even indication Villaseñor had confronted or issued a threat to any of them. Nor was there any specific evidence that the defendant had acted on carrying out the action prosecutors alleged it was his intent to engage in.
Testimony from the detectives working the case revealed that despite their having hours upon hours of 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, they were unable to extract a confession from him. During an interrogation designed to break him down psychologically, one filled with loaded questions which by their very nature were implicative no matter what response was ventured, such that his guilt was implied from the outset, he continuously thwarted them. When the investigators pressed him to tell them how he had planned to overcome the obstacles to carrying off the mass shooting they said he was militating to carry out, 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, he simply abnegated 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.” The upshot of his interrogation was that shooting up the Ontario Christian High School campus was their invention rather than his.
DeLimon was a far cry from the overworked, overwhelmed and indistinct designee from the public defender’s office who had sat idly while Villaseñor was led toward the slaughter during his arraignment in February. As a prosecutor with the Riverside County District Attorney’s Office before he went into private practice, he had prosecuted 34 homicides. He was more than up to dealing with a pretend murder case. DeLimon’s cross examination during the Villaseñor preliminary hearing was designed, and for the most part succeeded, in ramming home how far out in front of themselves the detectives and the prosecutors had gotten in insisting Villaseñor had murderous intent which he acted upon.
When Detective Albert Alvarado, the lead investigator on the case who had the advantage of hearing the testimony of all of the other detectives, was asked who Villaseñor’s victims were, the closest he got was suggesting that Villaseñor had in some fashion threatened his sister in the parking lot when he demanded she quit talking about the girl who had shunned 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 case was devoid of any overt acts. Villaseñor, DeLimon said, “had done nothing — nothing — to prepare” to carry out any murders.
Judge Faherty, however, was persuaded by Ploghaus’s presentation with regard to Villaseñor’s fascination with guns and past school shootings, his 4,500 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. Ultimately, Judge Faherty, 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.
The the count of making threats of serious bodily injury against a sixth victim – revealed as being Isabella Villaseñor – upon being explicated as 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.
Villaseñor thus found himself bound over for trial on five counts of PC664/187 – attempted murder – and DeLimon was thereby committed to propounding his defense before a 12-member jury of Villaseñor’s peers.
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 or others thwart the attempt or the perpetrator himself desists on his own without fulfilling the criminal objective.
Sometime earlier this month, the Sentinel is told, District Attorney Anderson refocused on the case and was given enough of a briefing for him to understand that Ploghaus is now set to go to trial without being able to establish any overt acts on Villaseñor’s part and that the only other charge – making criminal threats – had been dismissed. The prospect that the entire case against Villaseñor would be dismissed upon DeLimon making a pretrial motion or that Villaseñor would walk after a trial was held was overwhelming, Anderson had come to realize. Yet, many believed that despite his lack of technical guilt on the charges that had been lodged against him, Villaseñor continued to represent a danger to others. At that point, some in the district attorney’s office, including Anderson, had reached the conclusion others had months previously: Villaseñor needed psychological counseling and mental health treatment and that repositing him into a jail cell in which he was surrounded by older, hardened and experienced criminals was in no way likely to benefit him, lessen whatever hostility he had toward others or attenuate the danger he posed. 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 pragmatic middle-ground deal can be arrived at. What the district attorney’s office was offering, however, was a ham-fisted 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 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 who 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 without 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 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.
The district attorney’s office tried again, this time offering to vacate all of the attempted murder charges and recommend that Villaseñor endure no further jail time if he would enter a single guilty plea to felony assault with a firearm. That deal was conditional upon Villaseñor, through DeLimon, further accepting an unapplied use-of-a-firearm-during-the-commission-of-a-criminal-offense sentencing enhancement, one which would be held in abeyance as long as Villaseñor cooperated in participating in and completed receiving mental-health treatment as part of his probation. At issue for DeLimon, however, was that the district attorney’s office was again constructing a guilty plea on a crime his client had not, in fact, committed. Moreover, the conditions of the plea would require that Villaseñor complete to prosecutors’ satisfaction, whatever mental-health care regime they specified, such that if Villaseñor did not, he would be subject to a revocation of his probation, which would trigger the application of the 19-year prison sentence for the assault-with-a-firearm offense.
DeLimon rejected that deal.
At that point, collective panic, from the top to the line-prosecutorial level, gripped the district attorney’s office. In large measure because of its own doing, the district attorney’s office had created for itself an intractable problem. Instead of soberly analyzing what it had with the Villaseñor matter and quietly without fanfare utilizing non-prosecutorial tools such as counselors and mental-health professionals in dealing with a troubled young man and taking steps to ensure that Villaseñor would not have access to firearms at his home or elsewhere, the office had gone along with publicizing the Villaseñor case in parallel with the Ontario Police Department’s self-aggrandizement.
A decade before Anderson was elected district attorney in 2018, he had been an Ontario City Councilman. As the Villaseñor matter was undergoing its initial round of publicity, Anderson was overheard by mid-range prosecutors in his office remarking that the Ontario Police Department should be given full backing with regard to the case. This put Gaetano and then Ploghaus in the position of having to double down on rather than moderating the police department’s exaggerations relating to Villaseñor. This had led to the present circumstance in which prosecutors were in the position of having to endure losing at trial in their effort to protect society from a defendant they had participated into inflating into a publicly-perceived monster intent on and capable of killing scores of innocents.
At that point, any sense of honorable comportment or ethical resolution was out the window. The prosecutors scanned the horizon for any leverage or vectoring of force that remained. One factor of only a very few factors in the prosecutor’s office’s favor was that Villaseñor remained in custody among a multitude of felons and under conditions that those who cared about him, his family in particular, and those mental health and developmental professionals who knew about what he was enduring, wanted to see ended at once.
The primary factor militating against the district attorney’s office was DeLimon. As Villaseñor’s attorney he was offering the prosecution no quarter and he understood, to the degree that it could be understood, the fatal limitations in the case it was pursuing. The one conceivable strategy the district attorney’s office could come up with was to in some way attenuate DeLimon’s effectiveness, break his single-minded concentration, compromise his devotion to his client. What was called for was the equivalent of a crafty major league pitcher throwing a 98-miles-per-hour fastball at the head of a dug-in power hitter who is on a hot streak.
Any victory the district attorney’s office was to snatch from the jaws of defeat in the Villaseñor case was to involve interrupting the support network around the defendant. That support network consisted, primarily, of DeLimon and Jose Ramiro Villaseñor, who had retained him to defend his son.
The weak link that the district attorney’s office had spotted was Jose Ramiro Villaseñor, the registered owner of the seven rifles, three handguns and shotgun to which Sebastian Villaseñor had access found at the 3,201-square foot home located at 7940 Tallow Tree Circle in Eastvale where Jose Ramiro Villaseñor resided together with Sebastian Villaseñor and Isabella Villaseñor.
Isabella testified that she had seen her brother posing for selfies with her father’s rifles in December 2023. On January 21, 2024 Sebastian Villaseñor turned 18. At one point, DeLimon, in expressing his belief that the district attorney’s office was wrongheadedly pressing for a plea conviction against Sebastian Villaseñor on use of a firearm in the commission of a crime statute, publicly acknowledged that his client was still 17 years old when he had posed with his father’s rifles. That was a crucial fact, one which opens the potential for a prosecution of Jose Ramiro Villaseñor on a Penal Code § 25100 charge. Penal Code § 25100 prohibits storing a firearm in an unsecured location where a minor can obtain access to it. A Penal Code § 25100 violation can be prosecuted as either a felony or a misdemeanor. Were a criminal charge against Jose Ramiro Villaseñor on the basis of his violation of Penal Code § 25100 to be filed, a wedge would be driven between DeLimon, as Sebastian Villaseñor’s legal counsel, and Jose Ramiro Villaseñor, since this would introduce a conflict between the legal interests of the father and son. Were such a conflict to be introduced into the circumstance by the filing of a Penal Code § 25100 charge against Jose Ramiro Villaseñor, it is possible, perhaps even likely, that Jose Ramiro Villaseñor would discontinue his bankrolling of his son’s defense. Such an eventuality, which would conceivably result in the San Bernardino County Public Defender’s Office substituting in as Sebastian’s legal counsel, would redound to the benefit of the district attorney’s office, potentially putting it into a better position to map its way out of the conundrum it finds itself in with the Sebastian Villaseñor prosecution.
The circumstance is complicated by the consideration that Eastvale lies across the San Bernardino County/Riverside County boundary from Ontario. Thus, the Penal Code § 25100 charge against Jose Ramiro Villaseñor, if indeed it is to be filed, would be handled by the Riverside County District Attorney’s Office in Riverside County Superior Court. While there is no indication that Riverside County authorities are in any way contemplating a Penal Code § 25100 charge or any charges whatsoever against Jose Ramiro Villaseñor, it is a simple truism that Riverside County District Attorney Mike Hestrin, who has been his county’s top prosecutor since 2015, and Anderson have maintained an open, cordial and cooperative relationship. It is widely anticipated Hestrin would extend his fellow top prosecutor agency-to-agency privilege and quickly move to have his deputy prosecutors assist the San Bernardino County District Attorney’s Office on any case or cases in which there is an overlap between the San Bernardino County and Riverside County jurisdictions.
As of Monday, there were what well placed individuals said were “intense” and “ruthless” discussions ongoing between representatives of the San Bernardino County District Attorney’s Office and DeLimon. The Sentinel is reliably informed that those talks, which ironically involved a degree of intimidation on the part of prosecutors, have resulted in a tentative agreement to have Sebastian Villaseñor plead guilty to some order of a crime under Penal Code § 136, most likely Penal Code § 136.1, which prohibits dissuading, intimidating and/or tampering with a witness.
Penal Code § 136.1 can be charged as a misdemeanor or a felony. If prosecuted as a misdemeanor, it can result in a sentence of up to a year in county jail and a $1,000 fine. Felony witness dissuasion, intimidation or tampering can result in a sentence of up to four years in state prison and a $10,000 fine. The deal, which has not been finalized, would tentatively entail, the Sentinel is informed, Villaseñor, if convicted on the misdemeanor version of Penal Code § 136.1,remaining in jail no longer than the one-year duration contained within the statute, minus time already served, or, if he is convicted on the felony version of Penal Code § 136.1, being favored with a recommendation by prosecutors that any time in state prison be waived, such that he is sentenced only to time served. The deal will involve probation that would specify an intense mental health treatment regimen.
Neither the district attorney’s office nor its official spokeswoman, Jacqueline Rodriguez, responded to efforts by the Sentinel to obtain confirmation of its efforts to arrive at a plea bargain relating to the prosecution of Villaseñor.
Generically, Anderson has stated that he is providing the San Bernardino County District Attorney’s Office with “ethical and committed leadership” which has “restored ethics and fairness” to the way prosecutions are handled within the county.
Mark Gutglueck

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