A Tucson man who was facing 15 years in prison in connection with a human smuggling incident in March that injured a Cochise County deputy will spend only one year in custody after being offered a plea deal the same day a judge was to rule whether the case should be dismissed as a sanction against the prosecution.
Jesus Gerardo Lopez entered a no-contest plea on Dec. 8 to one count of unlawful flight from a law enforcement vehicle. A no-contest plea means Lopez, 28, was “not required to admit to anything” but would be treated “as if found guilty at trial,” Judge Timothy Dickerson explained during the hearing.
The plea deal also results in dismissal of eight other felonies Lopez was charged with in connection with the incident, including two counts of aggravated assault of a peace officer. In addition, the one-year prison term stipulated to by the Cochise County Attorney’s Office makes Lopez eligible for release after serving about 10 months.
Lopez will be sentenced Dec. 27 at which time he will receive credit toward the one-year prison term for the 286 days he has spent in the Cochise County jail awaiting resolution of the case.
But the no-contest plea was not why Lopez was in Dickerson’s courtroom on Dec. 8. Instead, the judge planned to conduct a hearing on whether certain alleged actions or inactions by the prosecutor justified dismissal of all nine felonies in Lopez’s case.
The case started the morning of March 16 when Deputy Robert Shalvoy of the Cochise County Sheriff’s Office (CCSO) initiated a traffic stop of a Ford Explorer suspected of being involved in human smuggling on State Route 92, a few miles from the Arizona / Mexico border.
Trooper C. Galarneau of the Arizona Department of Public Safety (DPS) was maneuvering his own patrol vehicle to serve as back up for Shalvoy when the trooper witnessed the Explorer accelerate away, “dragging the deputy.”
Shalvoy was able to dislodge himself from the Explorer and fell to the ground, at which time the DPS trooper initiated a pursuit of the Explorer. Galarneau’s report notes the Explorer swerved in and out of oncoming traffic several times, “running motorists off the roadway.”
The trooper quickly terminated the pursuit due to the “extreme disregard” for public safety shown by the Explorer’s driver. Shalvoy, who somehow avoided serious injury, joined in the search for the vehicle, which was located a short time later in a residential area.
Eight occupants were seen fleeing the Explorer on foot, according to Galarneau’s report. Six were undocumented non-citizens (UNCs) apprehended by personnel from DPS, CCSO, U.S. Border Patrol, and Sierra Vista Police Department. Two Tucson men were also apprehended, and were believed to be the driver and front seat passenger.
One of the Tucson men was found near the vehicle. The other, later identified as Lopez, was found hiding in the yard of a nearby house.
Lopez invoked his right to remain silent, but Shalvoy and a local resident identified him as the driver of the Explorer. So did the other Tucson man, who provided a detailed statement of how the two came to Cochise County to transport UNCs for payment.
A grand jury indicted Lopez in March on nine felonies. Then in October, his court appointed attorney filed a motion to dismiss the entire case as sanctions for the prosecutor allegedly failing to provide several items of evidence to the defense. Some of the items had been requested multiple times since April, according to the motion by Deputy Legal Defender Joel Larson.
Some of the undisclosed items were various photographs taken at the arrest scene, as well as a copy of the DPS interview with the other Tucson man. In addition, footage from the body-worn cameras of Galarneau as well as a CCSO patrol supervisor and a SVPD sergeant on scene had not been disclosed, Larson alleged in the motion.
The requested evidence was needed, Larson noted, because other evidence already disclosed showed “uncertainty among responding officers” of who was driving the Explorer and also raised “serious questions about the accuracy and reliability” of Shalvoy’s identification of Lopez.
Larson has also been awaiting since July for the DPS crime lab to compare fingerprint evidence from the Explorer to Lopez.
Another difficulty, according to Larson, was that he had no information on whether USBP agents questioned the six UNCs about the driver. The defense attorney could not conduct his own interviews of the UNCs as they were deported shortly after being taken into custody.
Court rules allow a judge to order sanctions that limit or even exclude testimony of a witness or the introduction of certain evidence if there are unreasonable delays caused by the prosecutor. Sanctions can also preclude the prosecutor from putting forth certain arguments to the jury.
A judge may also dismiss the case, as requested by Lopez. But just prior to the Dec. 8 sanctions hearing, Dickerson was advised of the no-contest plea agreement. Which made the allegations against the Cochise County Attorney’s Office.
Lopez’s jail credits could make him eligible for release from the Arizona Department of Corrections by mid-January. However, it is unclear whether he will make it to the state prison, as the county attorney has also charged Lopez with one misdemeanor count of trespassing related to his hiding in the backyard of a home on March 16.
That case, which is out of the Sierra Vista Justice Court, has a change of plea hearing set for Jan. 17 which typically requires the defendant to be in the courtroom.