Road rage suspect back behind bars

[Danney Ball]

 

Road rage suspect back behind bars

Mom heard gun shots then daughters screaming

Javier Espinoza shook his head and let out a sigh when he heard the news. Judge Franklin Stephenson was sending him back to jail.
The father of two who posted bail in February and entered the courtroom in a black jacket and a button-up white dress shirt Wednesday to answer to six felony charges against him, left in handcuffs.

Espinoza, 24, of Lathrop faces six felony charges and a gang enhancement. The charges include three counts of felony assault; two counts of felony child endangerment; and one count of participating in a street gang.

On Jan. 5, Espinoza allegedly shot at a mother and two children after impatience regarding a drive-up ATM at Bank of America at the corner of Yosemite Avenue and Main Street.

Neither the victim nor her children were hurt.

The attack happened in broad daylight at around 4:30 p.m. at a stop sign at Grant Street and Moffat Boulevard.

Espinoza -- who has served time in state prison -- was imprisoned Jan. 8. after his arrest and positive identification from the victim in the parking lot of Home Depot.

Hearing the preliminary evidence Wednesday, Stephenson set May 25 as the date when attorneys will set a trial date. Stephenson also ruled that there was a lack of public safety regarding Espinoza, so ordered him back to San Joaquin County Jail.

Lawrence Ward --privately retained counsel from Alameda County defending Espinoza -- argued against his returning to jail, and said that the defendant had been present at all court dates, had been quiet and respectful and was trying to get a job. The defense also said that Espinoza had two children and a wife.

Further defenses of Espinoza included that he did not fire the weapon at the three victims; that he was not a member of a gang; and that his Miranda rights were not read to him when he was interviewed in jail by a deputy sheriff.

There were three witnesses in Wednesday's preliminary hearing testimony: The victim and two Manteca Police officers.

The victim

The victim, Diane Banks -- obviously nervous on the stand, accompanied by an employee of the Victim-Witness Program -- was questioned by deputy district attorney Michael Mulvihill as to exactly what she was doing on Jan. 5 around 4 p.m.

Banks said that, among other errands, she was banking at Bank of America on the corner of Main Street and Yosemite Avenue. After she pulled up to the drive-up ATM, she found it was broken. She said she pulled up even further and walked over to the walk-up ATM around the corner of the building. As she was banking, she heard a "blaring horn." A gentleman beside her said something to the effect of "what is that?" Though she wanted to hurry back, she had to wait to get her ATM card back from the machine. Rounding the corner back to her pick-up truck, she saw a black Cadillac Escalade and two men in the front. She said she shrugged at them and indicated that the drive-up ATM was broken. Getting back into her vehicle, she told her kids to re-buckle their seat belts. As she started out of the bank parking lot, she said that she looked behind her and saw the two men in the Cadillac yelling and making "gestures." She could not specify exactly what those gestures were.

Proceeding to a side street -- she said she did not know which street because she didn't know Manteca that well -- she said that she saw the Cadillac behind her again. The vehicle sped up and was beside her when one of her daughters said she could see a gun. Banks turned around and saw it too, she told Mulvihill, from a hand that came out of the sunroof of the Cadillac.

The next thing she knew, there were shots fired and the glass of the back of the truck was broken. Her daughters were screaming. She was screaming. Banks said there were pieces of glass in her three-year-old daughter's hair.

Banks said she did not know if the passenger or driver had shot out of the Cadillac.

During the cross-examination, Ward took issue with whether the glass was actually broken or not, since there was no catalogue of the glass in police reports. Ward also took issue with the height of Banks' two daughters, and whether or not they were visible from the back of the pick-up truck. Banks said that her 11-year-old was as tall as she was, about 5 feet.

Officer Barry Blackburn

Manteca Police officer Barry Blackburn responded to the call and told Mulvihill when he arrived, Banks and her daughters were "very upset and crying."

Blackburn, a 19 year veteran of law enforcement, said that he did find glass in the back of the truck but did not put it in the report because the truck was to be impounded and investigators were to catalogue its contents.

Blackburn said that he interviewed Banks and Banks' 11 year old. He did not interview the three-year-old because of her age.

When Blackburn asked the 11 year old what kind of gun she saw, she said that it was like his -- a small handgun.

During cross-examination, the defense attorney asked Blackburn about the height of Banks' daughter, to which Blackburn estimated about three-foot five-inches.

Officer Gregg Beall

Manteca Police officer Gregg Beall was the investigating officer who interviewed both the victims and the suspect Espinoza. Beall's testimony Wednesday was primarily concerned with identifying Espinoza's actions with that of gang activity. If Espinoza's gang enhancements hold up in court, it could mean extended jail time for the father of two.

Beall said that Espinoza had admitted to being part of the Norteno street gang in the past, but was no longer a member. Beall pointed out that Espinoza had a tattoo "XIV" across the knuckles of his right hand.

According to Beall, Espinoza thought that Banks' gestures toward him were rude and derogatory, however Espinoza did not maliciously follow Banks; his car just "ended up beside hers."

Beall said that Espinoza told him that the passenger, named "Carlos" did the actual shooting. Espinoza told Beall that he saw no damage to the victim's pick-up truck after the shooting.

On Jan. 8, when Manteca Police officers caught Espinoza wearing a red cap, a red shirt and red shorts driving his Cadillac Escalade, Beall said he found three carbon-dioxide canisters and numerous BBs in the vehicle's center console and glove box.

Further investigation as to the whereabouts of Carlos yielded nothing, Beall said.

During cross-examination, however, the defense attorney got a reaction out of Beall when he suggested that the officer could have looked on Espinoza's cell phone -- confiscated as evidence -- to see what Carlos' number was.

Beall said that he did not do that.

History

Before the six felony charges against Espinoza hit the court system, the DA's Office had cut a deal with the suspect: A guilty plea on one charge and limited time in jail.

Espinoza refused the deal.

To reach reporter Carl Johanson, e-mail

cjoh...@mantecabulletin.com

By CARL JOHANSON

Staff reporter of the

Manteca (Calif.) Bulletin