The next morning I took a shackled bus ride to court and got another police report from detective Maltobano interviewing Mr. Dudley. I read it in the holding tank waiting for court. Detective Maltobano took a much more detailed report that showed my investment dates going back the nine months and that I was showing up every day to work for Mr. Dudley, that I’d built up a portfolio, and then stopped showing up after the river run in Nevada. I felt a little hope reading because this was the most detailed look at my investment and was where Mr. Dudley’s fraud started and we could prove it! How though? I couldn’t call the Hell’s Angels as credible witnesses. We needed to send investigators to the dealership to document that my investment wasn’t for sale, it was a sham! I thought, shouldn’t that show where law enforcement started supporting a liar and a criminal?
I kept reading the report and saw that the first charge of Home Invasion, Robbery and Extortion were logged a day earlier than on detective Pincher’s report! The other two charges were a day off also! The end of the report ended completely different from detective Pincher’s in that Mr. Dudley stated that when he allegedly asked me when his investment would be considered paid? I’d said, “Only time will tell.” Instead of those insane threats that I’d light his house on fire with his whole family in it!
When I made it to the court room my attorney wasn’t even there. Then, when he showed up he was in a hurry and told me, “They are adding another charge of fortifying against you. That’s a building block for R.I.C.O., organized crime.”
I waved my new police report from detective Maltobano in the air and Mr. Barries said he’d already read it. He hadn’t even noticed all of the glaring discrepancies with dates and the massively different ending! He told me it wasn’t a big deal when considering the big picture and that they’d fix it by the time preliminary hearing came around!
CHAPTER 125
Back in my little single man cell in our neck of the county jail, the weekend arrived and I got a chance to get out of the cell for dayroom at the end of the tier. Outside of our cells there was a four foot walkway and a set of bars shoulder high to try and keep us from hopping over to the tier below us to identical cells and structure. Across from our cells, further down, there was a thick Plexiglas window that we could barely see through. We could see an eighty man tank for the lower security inmates living in a dormitory on the other side. We could also see our own reflection from our own cells with that window. I walked down the tier to our dayroom with my shower gear and realized half of our 12 cells were out together. Our dayroom consisted of a T.V., a phone, four tables, the newspaper, a couple of chess boards and a smaller enclosure made of bars for the shower. I set my shower gear down and met a few people.
The only other white man introduced himself as Shotgun. He looked about 45 years old, had some dated archaic tattoos in a choreographed strategic manner, wore glasses, shaved head, and looked sharp and somehow dignified at about six feet tall and 200 lbs. We went over some preliminaries and I found out Shotgun had been in the same cell fighting a three strikes case for two years.
I watched him wrap a towel around a corner of the bars along the shower enclosure and realized it was for doing pull-ups. I started working out with him and listened to him talk about the three strikes law and his case.
“The three strikes law in California was enacted after a sex offender got out of prison and raped and murdered a little girl in Santa Maria. Her father was a senator and the media had a field day enraging the public with sentiment about a revolving door justice system. The politicians should have focused on the nature of the crime and dropped the hammer down on sex offenders instead of lumping us all together. Besides getting that part wrong, the three strikes law in California has a constitutional problem that goes to the nature of double jeopardy. I signed a plea bargain for a case in the 1970’s that is now considered a strike. Now they are using it against me again. That’s being convicted of it twice. If I would have known back then that this law was coming I would have taken the case to trial.”
I explained my case to Shotgun and he stopped me when I told him my first offer was 50 to life.
“Listen to me carefully. You can only catch one strike per case. That means you can’t catch all three, or six in your case, in one shot. If that was the case the county could just turn one strike-able felony into a list of them. Here is an example. Let’s say John Doe beats up Joe public and takes his wallet and runs away. The county could charge John Doe with assault and battery and add a charge of great bodily injury as a strike-able offense. Then they could add another strike-able offense for robbery for taking the wallet. Then they could add another strike-able offense for mayhem. Then another one for street terrorism. Now, just because I said they can’t do it don’t misunderstand that they aren’t doing it. They are. People are signing those kinds of illegal plea bargain sentences every day.”
“How do you know all of this Shotgun?”
“I’m getting literature about the three strikes law from the supreme court. Let me tell you something. The courts here on the ground floor in our county jails across California were grossly unprepared for this strike law. Like anything that has to do with law and lawyers the kinks get worked out over time as mountains of paperwork get pushed to the Supreme Court and back. What I’m telling you about not being able to catch more than one strike in one case is going to be responsible for the biggest backlog of paper work ever in California. The only time you can catch more than one strike per case is if it falls under what is called a crime spree and that is very rare.”
“Shotgun, why is my attorney letting me stress over the 50 year to life offer that’s on the table right now if it’s not even a legal offer?”
Shotgun looked at me like I was naive. “You have to understand something right now. Your attorney, Mr. high powered Barries, probably hasn’t taken more than a case or two to trial a year. Some of these attorneys don’t ever take a case to trial. Everything is a plea bargained conviction. You, as a client, will be a lot easier to manipulate into signing a deal after you have marinated long enough stressing on 50 years to life. That’s how this business works. It’s not like it used to be where the D.A. could stand firm with a 70% conviction ratio. That allowed some room for witnesses to have a motive for lying! Or a detective to be wrong, or even biased, or for circumstances to be a little different than they first looked. Now in Orange County the D.A. points to their 99% conviction ratio to show they are tough on crime and keep the price of real estate at a premium. That means everything that is alleged against you is going to stick and follow you for the rest of your life.”
I had to find out if my attorney already knew I couldn’t catch more than one strike in one case. I got on the pay phone and called him.
“Mr. Barries. I just found out that I can’t catch more than one strike per case. Is it true?”
I heard Mr. Barries clear his throat. It sounded like my attorney had me on speaker phone and I heard another attorney in the background talking to mine. I heard the other attorney asking mine, ‘Ask him how he found out?’ I heard my attorney clear his throat again and offer, “I just found that out, also, but I also just did the math on all six of your charges. The midterm on all six would come to 20 years, so it’s not that much of a difference. By the way, how did you find out?”
At that Moment I realized I was screwed. I was fighting for my life against the county and my attorney couldn’t be trusted. I lost it. “Mr. Barries how in the fuck can you let me stress over a 50 to life sentence and then as soon as I catch it’s not even a legitimate offer, you’re there to put me back over a barrel with my ass in the air with a 20 year offer? Let’s get something straight! I didn’t do it! Are you going to defend me and get my investment on record and prove Mr. Dudley is lying, or are you going to manipulate your own client?”
I got off the phone and came back to work out again with Shotgun feeling conflicted. It felt like it was me against the world in a high stakes poker game for my life.
> Shotgun laughed and said, “You remind me of someone who just left. He was in the same cell you’re in now.”
“Who?”
“A guy named Dennis Chavez. He said almost the exact same thing to his attorney.”
I explained how I knew Dennis and found out he’d signed a ten year deal and that Natasha had been released for medical relief. He told me what I already knew, she died a week later. I stared at Shotgun in shock and listened to the rest of his words drill a hole in my chest.
“The difference with your case and Dennis’s is that he was entering the residence of a drug dealer to get a pregnant 16 year old runaway out. In your case, you’re the drug dealer invading a regular Joe’s house.”
I went back to my cell and stewed on what Shotgun said. It didn’t matter what was true in my case, it only mattered what had been alleged and written about me. The more that was alleged and written, the less the truth mattered. I prayed to God, I know this is happening for a reason… But why?
CHAPTER 126
For the next ten months the system ground me down with the sharpest tool in their shed to get me ready to plea bargain, with an almost daily, long, shackled down bus rides to court. I learned that people don’t like to get packed like sardines and transported from a holding tank, to a bus, to a holding tank, to a courtroom, back to a holding tank, back to the bus, back to another holding tank and then finally back to their cell to do it all again the following day. They tend to want to get that process over with and sign a deal to get to prison where they’ve heard it’s better. I saw a lot of them signing those illegal sentences with wild accusations that weren’t defended and were now labeling them for the rest of their life, just to get it over with.
Somewhere along the way, I again realized that the power of the mind is an amazing blessing; I could turn hell into heaven if I tried hard enough. So rather than dwell on my burdens, I tried to help others who were struggling. In so doing, I learned a lot more about our justice system. I ran across a few other people who were doing the same thing and learned how to study law. I researched case law that the Supreme Court had already ruled on to use as precedence for my case. I found that six out of ten cases that went to the Supreme Court on appeal from our county got overturned for violations of the constitution relating to overzealous detectives and prosecutorial misconduct for not doing anything about it.
I compiled more and more case law regarding search and seizure, scope of searches and the elements involved in drug possession for sales. In the holding cells people would gather around me and we’d go over circumstances that applied. Back in the jail I’d go over it with Shotgun. Shotgun was using the case law as points of authority for motions, like the kind to dismiss charges. Shotgun was helping so many people understand the strike law and their case and how to deal with their attorney, that it was causing a ripple effect into the courtroom. It got to the point where the bailiff in the courtroom started telling detainees not to accept any jail house lawyer advice. He pointed out that it was bad advice and wasn’t professional. I pointed to the paperwork I had that said the Supreme Court was overturning 6 out of 10 appeals that came to them from our county.
I continued to do my homework with Shotgun and we crafted our own 995 motion to dismiss the drug charge in my case. After studying the search warrant we learned that the scope of the search was for the alleged items used in the alleged robbery. They had the authority to search for a gun, silencer and hockey mask and anything related to the robbery claim. It turns out that none of those items fit inside the battery pack of a snake light, so searching that area went beyond the scope of the search and should have been inadmissible. The next part of the search warrant that was bogus was the fact that I wasn’t on the lease. Detective Pincher assumed I was because my brother’s last name was the same but I wasn’t on the lease and didn’t have any bills in my name or anything else to show I had dominion and control of the residence. Now I understood why detective Pincher tried to coerce my brother to testify against me, he didn’t have much of a case for that quarter ounce of speed.
It got to the point where I had to trick myself into looking forward to the long bus rides to court by telling myself they were field trips to get out of jail and go see interesting people. Another way I made sure I didn’t fall into the trap of feeling sorry for myself was by acknowledging it could be worse, others had it worse. I wasn’t the only one our county was building a railroad against and I wanted to help as many of them research the law that applied to their case as possible. There was a sea of lost souls to try and inspire a smile out of.
In my case, my attorney Mr. Barries was being cryptic with our defense. I continually asked him to send an investigator to the Harley dealership to pose as a buyer so we could prove my investment was a sham and couldn’t get him to do it. He deflected everything with a response that, “A lot will come out in preliminary hearing next week.”
CHAPTER 127
Two days before my preliminary hearing, on Halloween, I talked to my attorney on the phone to go over his lack of strategy in my case. I tried to get ahead of him to shake him up enough to understand what was going on.
“Mr. Barries! I know why you’re not sending an investigator to the Harley dealership to get the fact that my investment with Mr. Dudley is fraudulent on his end. You don’t even want that fact to come out on record because then you’ll be obligated to use it as a defense!”
My attorney ignored me as usual and responded, “Benny. Do you have today’s newspaper?”
“No. We’re a day or two behind.”
“If you did, I’d have you go to the obituaries… Mr. Dudley had a heart attack and passed away on October 27. I hope the D.A. doesn’t insinuate that this case influenced it.”
“Mr. Barries. Mr. Dudley was a constant drinker and smoker who did business fraudulently! Don’t you think those are some factors?”
CHAPTER 128
At my preliminary hearing things didn’t go as expected. Mr. Barries ran it down.
“Benny. The D.A. is playing hardball. They are taking the stance that you’re to blame for Mr. Dudley’s heart attack. They are calling his son and his daughter to testify against you in place of their father. Legally, they can’t do that, but for the purpose of preliminary hearing the judge is going to allow it. They are going to take what their father said to detective Pincher and admit it as evidence as hear say. The reason it’s inadmissible in a court of law is because we don’t have the opportunity to cross examine it now that Mr. Dudley is no longer with us.”
“So you’re telling me it’s illegal, but they’re doing it anyway?”
“Benny. This is Orange County. They write their own law here. They’re looking at it like it will take years for the Supreme Court to overrule them. It will also take you a lot more money in attorney fees to get it there…”
CHAPTER 128
After all of the testimony was taken my attorney came back.
“Benny. The D.A. has made an offer. They are willing to drop all of the charges relating to in home invasion, robbery and extortion, all of the srike-able offenses, if you sign for the possession for sales of the speed in the snake light and sign guilty for the pot charges you were on the run for. The offer is six years.”
I stared at my attorney and knew the D.A. had even less of a case now that Mr. Dudley’s son and daughter had just contradicted each other so significantly on the stand. It didn’t matter. My attorney wasn’t fighting for me. I stared into his eyes and felt all of the fight leaving my mind, body and spirit. Mr. Barries continued.
“Benny. It’s a good deal… I’d tell my mother to sign it.”
“Mr. Barries, you would have defended your mother and proved Mr. Dudley set up a sham investment with her!”
“Benny. You’re being railroaded! I have to work with these D.A.’s and judges! This is where I do business and they want a conviction and are willing to do anything to get it.”
I signed for six years.
CHAPTER 12
9
Central California State Prison.
I watched Screwball shake his head in disgust with my court story.
“Your attorney Mr. Barries straight up admitted he couldn’t properly defend you because of the pressure of having to work with those D.A.’s! So everything that was alleged against you is going to assassinate your character for the rest of your life.”
“It has. First, I got sent to a level four prison because of it. Just being there is a set up. There are a bunch of people coming out of the Pelican Bay S.H.U. who the state is trying to label as affiliated. So now that I’m doing time with them, it’s guilt by association. If they put me in a cell with one of them, it goes in the file. If you eat at the same table, or work out together on the yard, it goes in the file. When I finished up my six year sentence I had all of that noise Mr. Dudley alleged combined with the state’s file that I was an associate. I knew I had an uphill battle awaiting me so I told myself that I have to keep the faith that everything happens for a reason. While I was doing my time I did a lot of soul searching, reading, writing, playing chess and watched CNN. Somewhere along the line, I told myself that when I got out, if I put as much energy into starting a business, or working a legal job, as I had in the drug business, I’d be very fruitful.”
Screwball nodded his head he understood. “So how did it feel to get out and have a high control parole officer who decides your fate reading a file that had all of those accusations against you? Did you feel like you had a fair shot?”
“You’re right about the high control parole officer. Mine had the title of S.S.U. high control and his name was Douglas Heimrick. He started by telling me that I was going to be watched 24/7 by the gang task force, narcotic detectives, neighborhood watch and whoever else they could get to keep track of me. He told me I was to keep a log of everywhere I went, who I saw and what I did everyday and that if my log didn’t match up with their log, I was going to get violated! I was so overwhelmed that I tried to get him to see me as a human being, and not prejudge me by what was written about me in his file. I told him, Mr. Heimrick, I’m not a child molester, rapist or a rat and I didn’t do a lot of those things that were alleged against me. I’m asking you not to believe everything you’ve read about me and base your decisions on what you see in front of you.”
ROLL CALL ~ A Prison List (True Prison Story) Page 35
