The Hollister man accused of shooting a rival gang member in the
Kragen Auto Parts parking lot last year pleaded no contest to
assault with a deadly weapon and street terrorism Wednesday
– a plea agreement that cut his prison sentence from 29 years
down to a maximum of eight.
Hollister – The Hollister man accused of shooting a rival gang member in the Kragen Auto Parts parking lot last year pleaded no contest to assault with a deadly weapon and street terrorism Wednesday – a plea agreement that cut his prison sentence from 29 years down to a maximum of eight.
While District Attorney John Sarsfield declined to elaborate on the terms of the plea agreement for 33-year-old Francisco Olivera, felony attempted murder and gun possession charges were dropped, according to court documents. Attempted murder carries a maximum prison sentence of 15 years to life if convicted.
Sarsfield, who introduced a zero-tolerance policy on plea bargains for gang crimes and firearm offenses two weeks ago, said his office worked hard to make sure justice was served in the Olivera case. However, he said this one was weak and he struck a deal with Olivera to prevent the case from being dismissed completely. Many of the witnesses were gang members who refused to testify, he said.
“We have nothing,” he said. “We have a case that just doesn’t work. Given the facts of the case this is the best we can do.”
The district attorney’s office needs additional resources in order prosecute cases instead of just striking deals, he said.
“I would love to prosecute every case and not take any deals,” Sarsfield said, “but that takes money.”
Sarsfield charged Olivera last month with attempted murder, assault with a firearm, street terrorism and possession of a firearm by a felon, all of which are felonies. The plea included only the assault and street terrorism charges.
Olivera, a member of a Sureno street gang in Hollister, shot a rival Norteno gang member, 26-year-old Enrique Torres, in the arm in March, 2004, after the two had argued briefly inside the auto parts store. Olivera shot Torres in the middle of a crowded parking lot around 1pm. Torres survived the shooting.
At the time of the incident, Olivera was already a convicted felon, according to Public Defender Greg La Forge, who convicted Olivera in 2000 for assault with a deadly weapon before he became a public defender. Olivera had been sentenced to four years in state prison for the crime, which was his first felony strike, La Forge said. Olivera could be facing his second strike, but his lawyer, Chenoa Summers, who did not return phone calls, is contesting the first strike, according to court records. Three strikes land an offender in prison for life.
Sarsfield also declined to comment on when Olivera would be eligible for parole or whether the year he has already served awaiting trial would count as time served.
While Hollister Police Chief Jeff Miller, whose detectives investigated the shooting, had not been notified of the plea agreement and could not comment on the specifics of the case, he said Sarsfield’s zero tolerance was a good idea.
“I think it’s good to have a tough policy,” he said. “That is something that I have long encouraged.”
Tough sentences protect the public, make sure justice is served and deter crime, he said.
Miller recognizes that plea bargaining is an important part of the judicial system, but said that, in general, they are not always the best option. Each case must be looked at individually, he said.
“A plea agreement may be appropriate,” he said. “But there are other times when the plea is substantially less and it’s inappropriate.”
The plea bargain in the Olivera case was agreed to before the zero-tolerance policy, and in the future Sarsfield said he would not accept plea deals with offenders suspected of crimes involving gangs or guns. A recent rash of crimes involving guns prompted the zero tolerance policy, he said.
“If you get charged with a gang crime or a gun crime you will not get a plea,” he said. “This is going to impact the jail, the court and my office. We will go over budget if we have to because it is too important.”
Criminal defense attorney Arthur Cantu, who has announced his candidacy for district attorney in 2006 and has made gang violence one of his platform issues, was baffled by the deal.
“We shouldn’t have to wait for someone to die to get tough on gang violence,” he said. “If you’re a gang member and you shoot somebody, you should go to prison – there should be no deals for gang members.”
Unless the district attorney’s office gets tough on gang violence, it is likely to continue, Cantu said.
“The community is tired of the gang violence,” he said. “They want to send a message to gang members: Not here.”
Olivera is schedule to appear in court again on Jan. 4 for sentencing, which is when a judge will decide if the crime is counted as a strike.
Brett Rowland covers public safety for the Hollister Free Lance. He can be reached at 831-637-5566 ext. 330 or br******@fr***********.com.
