More than seven weeks after Judge Arthur Benner II and more than three weeks after Judge Shannon Faherty “erred on the side of caution” and allowed five counts of attempted murder to stand against 18-year-old Sebastian Bailey Villaseñor relating to what was previously alleged to be extensive plans to shoot several students at the high school he attended, an effort is on to foreclose the matter by having the youth committed to a mental institution.
Such a resolution would allow a whole host of individuals – from officials with the school to members of the Ontario Police Department to the district attorney’s office to at least three members of the bench who have overseen the case against Villaseñor and its continuation – to save face following the revelation that elements of the case were exaggerated, misrepresented or outright fabricated.
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 “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.
A reasonable reading of the information gleaned was 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 less than airtight 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 and the San Bernardino County District Attorney’s Office – have now come to regret, Villaseñor’s arrest was writ large in the media and played up as the police department swooping in at what was a critical last moment to avert widespread carnage.
Not only was the arrest announced, but a press conference was called, at which Ontario Police Chief Michael Lorenz, inviting a positive perception of his department, said Villaseñor had engaged in painstaking research and was choreographing a precisely calculated hit involving five specific individuals that could be effectuated within a strict timeframe and in a way that he could elude arrest or having to deal with the police response.
According to Lorenz, the only reasonable conclusion that could be drawn was that Villaseñor was about to embark on a murderous rampage.
“He was so obsessed with our response times that he Google-mapped how far it would be from the Ontario Police Department for our response time to the school,” Lorenz emphasized, adding, “Villaseñor had every intention of carrying out a school shooting at Ontario Christian High School.”
The vilification of Villaseñor was rather intense. It was noted that Adolf Hitler was a personage in whom Villaseñor had expressed an interest during his forays throughout the internet while he was delving into other massacres and how they had been carried out. One inference was that the planned shooting date of April 20, in addition to corresponding to the 1999 shooting at Columbine High School in Colorado, is also Hitler’s birthday. Without revealing how, precisely, they knew, officials did not let it go unremarked that Villaseñor, despite being Hispanic himself disliked minorities and was hostile to homosexuals and, in particular, transsexuals.
Even if Villaseñor’s plans for mayhem were not as grandiose as that of the Stoneman Douglas High School shooter, Nicholas Cruz, who killed 17 and himself survived, or the Columbine High assailants, Dylan Klebold and Eric Harris, who killed 12 and one teacher and then killed themselves, officials assured the press and public that Villaseñor was absolutely committed to killing no fewer than five of his classmates, consisting of four girls and a boy with whom he had, for him, unsatisfactory interactions.
It was emphasized that Villaseñor’s internet activity going back at least six months indicated he had come to his anti-social attitudes on his own and had not been indoctrinated by any particular person or group.
At that time, without providing any specific information as to the victims or alleged victims in the case, the district attorney’s office, adhering to the originating matter or act which had set all of the investigative and prosecutorial machinery into motion, charged him with one count of PC664/422 – attempting to make a criminal threat. Though the victim in the case was identified as another Ontario Christian High School student, it was not revealed or even suggested that the victim in question was Villaseñor’s sister. Indeed, it was both hinted and directly stated at one point or another in the press conference that the victim was male, an inaccuracy officials did not dispel or clarify, although, in another context, the victim of the threat was referred to using a female pronoun.
The issue of the attempted criminal threat, however, was overwhelmed by the spectacularity of the other charges: five counts of PC664/187 – attempted murder.
At that point, Villaseñor was represented by the San Bernardino County Public Defender’s Office, which had not yet assigned a deputy public defender to the case. Nevertheless, there was a widespread reaction throughout the legal community – primarily the defense bar but even among some prosecutors and former prosecutors – that the district attorney’s office was getting out in front of itself in alleging that the known facts, even as outlined by the investigators and prosecutors’ office in the most damning of light, did not justify the charges or meet the most rudimentary elements of the attempted murder statute.
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.
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 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.
Actuating an attempted criminal act, even though the attempt is not moved through to completion, meets the requirements of criminality under Penal Code § 664.
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.
As pertains to attempted murder, such a crime 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.
Villaseñor was first brought before Judge Arthur Benner II at the West Valley Courthouse in Rancho Cucamonga for arraignment on February 15. Villaseñor was not present but appeared via video from where he was being held, at the West Valley Detention Center. The overwhelmed Villaseñor, who had virtually no understanding of justice system processes and had not had direct access to any attorney despite the San Bernardino County Public Defender’s Office having officially been assigned to represent him, did not make any cogent response to the charges lodged against.
Judge Benner’s role in officiating over the arraignment, as is the case with any arraignment, extended only to ensuring that the charges fell within the California Penal Code, to inform the defendant of what the charges were and to give the defendant an opportunity to plead guilty or not guilty to the charges. At that point, Judge Benner, who had more than two decades of experience as an attorney practicing in the area of criminal defense when he was with the law firm of Wood, Smith, Henning & Berman; another firm, Inland Defenders, which handled criminal defense work; in private practice with his own law firm; as well as with the San Bernardino County Public Defender’s Office, did not have an opportunity, within the forum of the arraignment, to look at the facts behind the charges to determine the legal sufficiency of the case being brought against Villaseñor. Rather, he was bound to accept that the district attorney’s office had lodged the charges in good faith. When Villaseñor was unresponsive, Judge Benner entered not-guilty pleas on his behalf to five counts of attempted murder and one count of attempted criminal threats. Legal experts said at the time that Judge Benner likely recognized, based upon the publicity that attended the matter, the issues around the case were highly charged and he could not have missed that Villaseñor not having taken any overt acts in furtherance of any murder attempt under Penal Code Section 187 meant the elements of the PC664/187 – attempted murder charges had not been met.
That Villaseñor had eclipsed his 18th birthday left him in a vulnerable position legally insofar as he was subject to incarceration among the adult population of the San Bernardino County jail system. He remained in custody, even as his father, Jose Ramiro Villaseñor, fully oriented himself to what was happening with his son and the potential that it might also have legal consequences for himself.
Somewhat ironically, the same factor that made things so difficult for his son – that he was of the age of majority and thus subject to the vicissitudes of the justice system as is applied to adults rather than juveniles – alleviated Jose Ramiro Villaseñor of a personal legal liability. Under California law, it is a crime – usually charged as a misdemeanor – to leave a firearm unsecured such that it is vulnerable to access by a minor. The Ontario Police had obtained photographs of Sebastian Villaseñor in possession of, indeed freely posing with, what appeared to be at least two of the eleven firearms his father owned. Given that all of the weapons were properly licensed, and that Sebastian was no longer a minor, those photographs were not indicative or probative of any crime by Jose Ramiro Villaseñor.
In this way, Jose Ramiro Villaseñor was free to concentrate on his son’s legal challenge rather than having to take action or pursue a defense of himself that might complexify his son’s legal standing. He turned to defense attorney Daniel DeLimon, who prior to founding his own firm, was a prosecutor with the Riverside County District Attorney’s Office where he prosecuted at trial more than 30 homicide cases.
In the immediate aftermath of the district attorney’s office receiving reports pertaining to young Villaseñor and the inflated claims as to his intent, including the grandstanding by the police department to the effect that its officers had “saved several, maybe even dozens of, lives,” District Attorney Jason Anderson, who had previously served a term as city councilman in Ontario while he was a younger deputy district attorney, empowered his office to back the Ontario Police Department in its effort to demonize Villaseñor rather than engage in a careful analysis of the facts and the case against him.
Supervising Deputy District Attorney Joe Gaetano went on record in as saying that Villaseñor “poses a great danger to the community.” Gaetano hinted that in addition to the four young women and one young man Villaseñor had attempted to kill and the other student Villaseñor threatened, there were other possible victims who had been targeted by the defendant. Police Chief Lorenz threw in that Villaseñor was “fixated on school shootings and had access to weapons.” The community was reminded that Villaseñor undoubtedly would be able to piece together who it was who had come forward to inform Stutz and Dykhouse about his murderous intent and that person’s life would be in jeopardy if Villaseñor were to be released. No reasonable means of protecting the community would exist if Villaseñor were to be set at liberty once more, officials said, and he remained in custody without bail.
The lionization of the police and the courageous student who had come forward and the demonization of Villaseñor continued.
“Thanks to the swift and thorough response of Ontario Police Department, and the bravery of the student who voiced concerns, tragedy was avoided and potentially lives were saved,” the district attorney’s office said in a statement. “Our office wants to remind everyone in our communities across San Bernardino County that active shooter threats are always considered serious, and if you see something, say something.”
Ultimately, however, the district attorney’s office would have to put a case against Villaseñor together, one that would need to fit within the confines of the California Penal Code and convince a jury that he had indeed set out to kill other students but had not succeeded. Even assuming that a jury could be persuaded that the community was in danger from Villaseñor and a conviction obtained, with an attorney of the skill and experience of DeLimon representing the defendant, all conceivable defense angles would be raised and explored, leaving the matter open for appeal to the Fourth District Court of Appeal in Riverside, which would not be caught up in the pomposity that had characterized the case and the fear mongering both the police and the district attorney’s office were engaging in, and would relentlessly be drawn back into an analysis of whether the elements of the crime alleged were actually present in the events that had occurred.
On April 11 and April 16, Villaseñor’s preliminary hearing before Judge Shannon L Faherty began with testimony by first Dykhouse and then Stutz. Thereafter Jake Arakawa and Elizabeth Fries with the Ontario Police Department testified. A photograph of a yellow paper upon which Villaseñor had written was introduced as evidence.
Fries was followed to the stand by Detective Edmund McCorkle, during whose testimony exhibits were shown and designated by identification markers, including a cell phone “thumbnail” given no further specification in the court record; a “bomb making” thumbnail; a “Columbine shooters” thumbnail with search data; and a “tactical outfit” thumbnail. Officer Manuel Bonilla testified as did Detective Albert Alvarado, the lead investigator on the case.
Isabella Villaseñor’s testimony undid much of the case against her brother. She testified that her contact with the Ontario Christian High School counselor Mitch Stutz and then Principal Benjamin Dykhouse on February 8 was made as much out of spite toward her brother as for concerns about safety. She went to Stutz because in the parking lot that morning her brother had demanded 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.
When the detectives working the case had unfettered access to the cognitively-challenged Villaseñor for hours on end outside the presence of his parents or legal counsel, during which the investigators 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, it came across that shooting up the Ontario Christian High School campus was their invention rather than his. By challenging him 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.
The dead end the prosecution was pursuing was perhaps most explicitly revealed 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.”
None of the detectives working the case could identify any specific threat made by Villaseñor to his schoolmates.
The entire case is devoid af any overt acts or the necessary components of murder attempts or even a single murder attempt, according to DeLimon. “He had done nothing — nothing — to prepare” to carry out any murders, DeLimon asserted.
District Attorney Debbie Ploghaus, who had been given the assignment of shepherding the case against Villaseñor through the process, withstood blow upon blow, consisting of her witnesses failing to marshal the evidence they had promised in the marquee build-up of the case and DeLimon steadily hammering on the absence of overt criminal acts. She pressed on, gamely. With Orwellian standards having now taken root in an Orwellian age where one’s curiosity is thrown into stark relief by virtue of the recording of everyone’s digital footsteps, she made no bones about how the police have now taken on the role of the thought police, that certain subjects are indeed taboo and indulging one’s curiosity by looking into things deemed contrary to the public interest or researching violent historic events crosses the line into criminality in today’s world. Without clarifying whether the figure she cited referenced the number of algorithmic responses to a single or a series of searches, Ploghaus said that an Ontario police detective came across 4,500 downloads, thumbs, images, texts or searches relating to school shootings, a clear sign that 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.
Despite the puerile case presented against Villaseñor, Judge Faherty, who was a prosecutor in the district attorney’s office for 12 years before she was elevated to a court commissioner’s post in 2018 and was advanced to a full Superior Court Judgeship in 2020, was inexorably drawn toward the interpretations Ploghaus offered rather than DeLimon’s apologia for Villaseñor.
After two days of the case’s law enforcement witnesses seeking to fill the gaps between what Villaseñor on one end actually did or said or wrote and on the other what the district attorney’s office or police department said he was thinking, with DeLimon calmly but firmly asserting that there is a distinction between thoughts and acts that under the law cannot be blurred, 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.
In what was for legal observers a somewhat startling turn in the case that they say is likely to have a tremendous bearing later, the count of making threats of serious bodily injury – which the preliminary hearing had revealed grew out of the 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.
Unless some other charging scheme is substituted for the five attempted murder charges now in place, current prosecutors to past prosecutors to defense attorneys have confided their belief that the case against Villaseñor is going to fall apart once the trial begins and the need to put on evidence of actual deeds taken become paramount. Without the criminal threats charge as a fallback position when the attempted murder charges drop out, the case will end, they predicted.
On April 25, Villaseñor came before Judge Joseph Widman in Department R9. Judge Widman scheduled a pretrial hearing for May 16, a trial readiness conference on May 31 and trial to begin on June 3, with it all to take place in Department R9. It is not clear whether Judge Widman or Judge Jon Feguson will preside over those hearings and the trial. 
Within the district attorney’s office, there are prosecutors who have dived out of the way, seeing the train wreck that is coming. In February, while he was briefly focused on the matter, District Attorney Jason Anderson authorized his prosecutors to do whatever they needed to do to back the Ontario Police Department. It was only recently that he has refocused on the case and now sees that despite the hype surrounding the matter, the assumption that the elements of the crime existed was an outgrowth of the hype.
The district attorney’s office now faces the prospect of seeing the case thrown out in its entirety upon DeLimon’s filing of a so-called 995 motion prior to trial that will argue the case against Villaseñor is missing basic elements of attempted murder. A motion to dismiss could be made to the judge who hears the matter after the prosecution puts on its case. The prosecution also must face the prospect of losing the case at trial, or winning the case at trial but seeing the convictions erased at the appellate level. There is virtually no possibility that the prosecution will prevail at trial and not experience an appeal.
What has come home to Anderson is that the forum of the court and tools of prosecution being used are inadequate to the achieving of a desirable outcome in the matter involving Villaseñor, who falls in neither the category of being a criminal nor what is classically referred to as mentally ill or insane.
Rather, as was recognized by at least two of the detectives assigned to the case,  his sister and other members of her family and both the Ontario Christian High School principal and counselor, Villaseñor is autistic. As early as February, DeLimon made public note of that. No one from the district attorney’s office sought to broker an alternative approach to prosecution, so committed was the monolith of San Bernardino County law enforcement to perpetuating the narrative that dynamic action by the Ontario Police Department had averted disaster. Instead, more than two n-and-a-half months after his agency went prosecutorial, Anderson now desperately wants to plug in an alternative of reaching a “cooperative agreement” with Villaseñor and perhaps even more importantly his family and DeLimon that would obtain for Villaseñor treatment to help him live at least nonviolently and perhaps even productively with his autism.
Reportedly, Anderson was as recently as a week ago yet approaching the matter within the parameters of the prosecutorial mindset, thinking that his office could use the leverage of continuing prosecution on the attempted murder charges to induce Villaseñor, his family and DeLimon to accept a plea agreement that would result in neither jail nor prison time and instead impose a strictly defined probation which would involve mental health treatment and monitoring. At this point, however, with DeLimon and Villaseñor having lasted through the preliminary hearing process, the inherent weaknesses in the case having been demonstrated in that forum, DeLimon recognizes that his client has a better than 95 percent chance of acquittal or dismissal, and he is willing to roll the dice. The sole remaining leverage Anderson possesses is his willingness to have Villaseñor released from custody prior to the trial.
On multiple levels, DeLimon has an inside track on ending the case with absolutely no criminal conviction of Villaseñor.
Within the district attorney’s office, which has exhausted virtually all of its options when it comes to dealing with Villaseñor, the last piece of high ground it holds is one in which the case is dropped and Villaseñor, on his own as an adult and with the encouragement and support of his family, enters a collaborative autism management program.
This week, when the Sentinel sought to get members of the Ontario Police Department to repeat the assertions they were making in February to the effect that Villaseñor attempted to kill five people, they refused.
“The DA wants us to keep quiet on this thing,” one explained.
-Mark Gutglueck