FRANK CARSON et al…….(Marty)

995 MOTION ON THE SPECIAL CIRCUMSTANCES

by Marty Carlson

6-5-2017

Judge Moody

Court was scheduled to start at 11 AM and was started at 1105 as Judge Moody was very early arriving to the court.

Judge Moody, who is from Monterey County, advised all the parties that he had been provided transcripts of this “extremely long preliminary hearing” via zip drive. So, he was somewhat familiar with the case.

Attorney Hans started out addressing the court stating that the special circumstances part is was ruled on by Judge Zuniga as there was none as they were not held, but the district attorney’s file office refiled the special circumstances again after the judge’s ruling in the preliminary hearing. Attorney Hans stated that Judge Zuniga had problems of the facts of the special circumstances, she stated that the district attorney said that Baljit was lying in wait on the Frank Carson property of the night of the incident. He stated that Judge Zuniga stated in her ruling there was no intent to commit a homicide at the time of the altercation. The special circumstances section calls for lying in wait in a homicide.

Attorney Hans stated there’s no evidence of Baljit had a weapon of any type, in fact Judge Zuniga had made a really that he was unarmed at the time. So there is no intent to commit a homicide by lying in wait.

Judge Moody interjected and talked about the intent to kill was a conspiracy by all or just one defendant, or the lying-in wait could be aiding and abetting. And he said the question is did the defendants have intent at the time that they were lying in wait prior to or just after the incident.

Attorney Hans responded with saying the facts say no intent also means there was no derivative intent.

Judge Moody responded by saying the people claim that the Atwahls had intent.

Attorney Hans responded with there was no weapon that was taken to the scene.

Judge Moody again interjected and asked was there a conspiracy in three defendants part in patrolling the property and attacking thieves and ultimately shooting of the victim.

Attorney Hans repeated again, though they’re not admitting to the circumstances given by the people, but there’s still no lying in wait on special circumstances according to the evidence brought out preliminary hearing. He stated there’s no other evidence other than Robert Woody about the altercation and Woody was not knowledgeable about any phone call made back and forth between the Atwahl brothers the night of the incident. In addition, Jim Cook stated there was no cell phone calls made to or from either device during that time.

Attorney Hans stated there was no urgency to leave the store after the alleged call, according to Woody, they took the time to close up the store and chain the door, and did not seem to be in a rush to get there.

He stated the timeline that Eula Keyes and Mike Cooley gave was that Kory Kaufman left their house to steal pipes at around 10 PM or 11 PM, and Robert Woody claimed the phone call came around 1 and 1:30 AM to go to the property. He noted that was a 2-3 hour after the victim had allegedly went to the property. He also stated that there were no citations in the district attorney’s motion as far as the lying in wait where the defendants were waiting for the victim.

At this time attorney Hans was done with his presentation and Robert Forkner moved up to the podium to be heard.

He stated that the District Attorney’s Office never alleged a conspiracy to a homicide, Judge Zuniga had rejected a lying-in wait based on Robert Woody testimony, but did apparently give him some credibility. Judge Zuniga ruled there was no malice of express intent on the defendant’s part. He then cited some case law in regard to lying in wait.

Referring to the District Attorney’s Office brief he said there were the no omissions in judge Zuniga’s ruling as is claimed by the people. The judge had rejected many other theories in their case and again found no lying in wait. Judge Zuniga found a spontaneous series of events but again no lying-in wait. Judge Zuniga also stated in her ruling there was no proof of armed patrols on the property prior to the victim’s death.

Attorney Forkner that in turn to account for on Frank Carson the perjury charge, as to the form 700 which the judge stated he was very well acquainted with, and Georgia Carson’s property was not listed on that form as it was property she had taken possession of long before they were married.

Judge Moody stated the forms avoid a conflict of the interest that people may have in serving and elected or political positions.

Robert Forkner also stated that the law allows a remedy for the form 700 mistakes or omissions by the way of an addendum. Which was done in this case when he found out what the problem was.

Judge Moody says the defense cannot say the omission is not material at this point.

Robert Forkner asked that the judge reduce the charge to a misdemeanor and the judge claimed perjury is not a “wobbler,” which means that a crime can be either a misdemeanor or a felony, there is no misdemeanor perjury charge in the books.

Robert Forkner argued to the court that legislators have laid out a penalty of a fine, in such a case, not a felony charge and there are remedies that are in place for such things that happen, by the way of an addendum.

At this point the judge stated to attorney Forkner at that this is not a 995 issue and should no longer be discussed.

At this time Mme. DA Marlisa Ferreira took the podium to address the court.

She stated that due to the judge Zuniga’s hold order lying in wait acts are allowed.

Judge Moody immediately cut her off and started sort of asking questions and making comments at the same time, where he was talking about it says one member committing a lying-in wait crime can make all parties previously or eventually involved be conspirators, If the intent to commit a homicide is proven. He went on to say the DAs pleadings in her brief were sketchy in some of the citations that she gave that summarized the admitted facts that they said Baljit Atwahl intended to kill the victim.

The people argued that they showed intent by the defense as communication prior to the homicide and a visit to Frank Carson’s office for Robert Woody’s case. In addition, there was a fight between Kory Kaufman and Daljit Atwahl in the parking lot of the pop and cork, in addition Frank Carson was targeting Michael Cooley.

She talked about Eddie Quentinar testified Korey Kauffman was targeted when you take in the statements by Kim Stout and John Paden when the threat would to kill Kory Kaufman was made on Johnson Street. That threat occurred two days prior to the homicide, saying they were specific to Kory Kaufman to stay off the property.

She stated Baljit Atwahl was patrolling the property thus shows intent.

In the judge interjected at this time saying it shows intent to kill an unknown person?

Mme. DA stated it shows intent of anybody that may come onto the property.

Judge Moody began asking if there was enough evidence to show the victim was killed on a contingency.

The people argued to the court that Frank Carson had gone to Michael Cooley’s house and made threats. And the judge interrupted her and said that is a contingency of Frank Carson and not the Atwahl brothers.

The judge tried to narrow the district attorney down a little bit by asking what the out walls intent was not Frank Carson’s, he says their actions are relevant.

Mme. DA said Frank Carson’s intent is first in the aiding and abetting, and the judge interjected again asking if she was talking about another theory and not what is being discussed here. He wants to know if Frank Carson aided and abetted in the altercation which led to the alleged homicide.

The district attorney said that the Atwahl brothers agreed to help Frank Carson with his problem he was having. She also began citing case law into some similar case where a victim was lowered to is seen by a person, and another person was waiting to commit the homicide at the scene. She stated Frank Carson aided by being on the property prior to the altercation, citing testimony by Robert Woody, Linda Sue Burns, Eula Keyes, and Michael Cooley who all said Frank Carson was walking around the property carrying a rifle earlier in the day. She also stated that Baljit Atwals cell phone was in the area of the Frank Carson property, and was put there by the ping on a cell phone tower.

The DA also noted that Frank Carson was the only one to have keys to the gates, as they were all padlocked, to Frank Carson had to be there. In addition, Baljit Atwahl was seen by the Cooley clan patrolling the property earlier in the day. She stated there is no evidence that Frank Carson was home all day and night as a defense is claiming, she stated that his phone went dark for over a 24-hour period.

She also referred to Jim Cook’s testimony, where he said a call can be made from a landline to another landline without detection.

She stated there was other attempts made to booby-trap the hole in the fence like barbed wire, placing plywood with £0.16 nails in it on the ground by the fence. She also stated it shows issues of them involved in the disposal of the body later.

Judge Moody mentioned to her that Robert Woody stated he did not see a gun, and she said there is no evidence that Daljit Atwahl had a gun but also there was no evidence that he didn’t have a gun either. She said that Baljit had held the victim there for Daljit to get there to shoot him. She also referred to the jacket and shirt holes, that were numerous, with Robert Forkner objecting at this point as that was not the evidence that was brought out in the hearing.

The judge did seem to be a bit confused about who they were saying actually shot the victim, and the district attorney finally clarified saying Daljit was the shooter.

As a DA was finished with her presentation to the court attorney Hans walked up to the podium for rebuttal.

He stated there is no evidence of multiple shots being fired only one shot only according to the DAs theory.

He stated that Jim Cook’s testimony was that landline’s may not be recorded but was not very clear as to the cell phones as his testimony would seem to get tainted.

He stated there is no evidence of a plan for Daljit Atwahl to leave with Robert Woody within a 15-minute period of Baljit leaving the store.

He stated John Paden interview said that he saw only one person in the vehicle when the threat was made on Johnson Street. And Kimberly stouts testimony that it was not Bobby or Daljit Atwahl one of their relatives.

Frank Carson’s meetings with the brothers prior to the homicide were due to Robert Woody’s case at Frank Carson’s office, with the brothers had given him a ride.

Finally, he says the district attorney has not been able to establish intent for lying in wait in this case.

Robert Forkner then approached the podium again for rebuttal.

He stated the “ass is grass” comment or incident is misstated by the district attorney and the beating of the pipes on the property was rejected by Judge Zuniga. Robert Woody’s testimony was that he never knew about the pipes.

Robert Woody was always consistent with Frank Carson saying don’t do anything, don’t hurt anybody, just find out who it is for the police to handle.

In addition, Frank Carson was never proven to be on the property by anyone that night, in fact he was home the entire day and evening. Frank Carson is not a technical type person who uses cell phones or computers, so it is not unusual, in fact it is a norm for him not to be on his phone.

That was the end of the hearing it lasted about two hours and judge Moody stated that he’s going to do some more review and within a week he will give a written ruling to all parties involved. When that ruling comes down I will let everyone know.

No future court dates were announced in court, but I believe the next court date is June 20 for Walter Wells Scott McFarlane and Eddie Quentanar.