Hollister
– A gang member who was sentenced in 2005 for assaulting a
disabled Hollister man had his prison term reduced on Wednesday
because of a judge’s error at the time his original plea was
entered.
Hollister – A gang member who was sentenced in 2005 for assaulting a disabled Hollister man had his prison term reduced on Wednesday because of a judge’s error at the time his original plea was entered.
Edgar Cortez, 23, of Hollister, got a new sentence of seven years and eight months in state prison from San Benito County Superior Court Judge Steven Sanders. After an appeals court had thrown out his original sentence, Cortez pleaded no contest in January to felony assault with a deadly weapon causing great bodily injury for the benefit of a criminal street gang.
In February of 2005, Judge Harry Tobias sentenced Cortez to 17 years in prison after he had pleaded guilty to the same crime with a greater enhancement for gang activity.
But an appeals court later ruled that Tobias had neglected to tell Cortez he had a right to a trial by jury before he entered that plea.
Tobias said Wednesday that the court appearance at which Cortez entered his plea in 2005 was split into two different hearings on the same day, and that he failed to have the defendant formally waive his right to a trial.
“It was a complete mistake on my part,” Tobias said.
After the appellate court’s ruling, Cortez was released from prison and his case was returned to San Benito Superior Court.
Cortez was involved in a brutal assault on 53-year-old David Ortiz on July 23, 2003.
According to court documents, Ortiz – who suffered from pulmonary fibrosis and scleroderma – was on his way home from picking apricots when he was attacked by three men and beaten with an aluminum baseball bat in the middle of Prune Street near East Park Street in Hollister.
During the beating, the attackers yelled “El Norte” in reference to the Norteño street gang, according to police reports. Those reports also said Cortez was a member of the East Side Norteño street gang at the time of the beating.
Cortez’s cousins, Adan Solorio and Aldo Solorio, were also arrested in connection with the assault on Ortiz.
A judge found there was no probable cause to try Adan Solorio and dismissed the case against him in 2004. Aldo Solorio pleaded guilty in 2005 to the same charges as Cortez and received the same original sentence. However, his guilty plea and sentence were thrown out by the appeals court on the same grounds as Cortez’s. Afterward, then-District Attorney John Sarsfield chose not to pursue a case against Aldo Solorio because Sarsfield said he was not competent to stand trial.
Deputy District Attorney Stephen Wagner said he decided to accept a plea bargain and a lesser gang enhancement for the crime committed because Ortiz has since passed away and therefore would not be able to testify against Cortez and also because he was concerned that to cases against Cortez’s original co-defendants had been dismissed.
“All things considered, this probably seems like it was the best result,” Wagner said.
Cortez’s attorney, Kurt Robinson, said he was pleased with Wednesday’s outcome.
“I think it was a fair resolution of the case for all parties involved,” Robinson said.
Cortez will have to serve 85 percent of his new prison sentence. With credit for time already served, Cortez will be eligible for parole in three years and seven months.
Michael Van Cassell covers public safety for the Free Lance. He can be reached at 831-637-5566 ext. 335 or
mv*********@fr***********.com
.
