Stephen D Aarons, Attorney at Law | Aarons Law PC | New Mexico Criminal Defense Attorney

Author: roadrunner

  • Judge eases pretrial conditions for Fabian Gonzales

    ALBUQUERQUE, N.M. — A 2nd Judicial District Court judge denied a motion to put a man tied to a grisly child killing back in jail.

    Instead, Judge Charles Brown eased pretrial release conditions on Fabian Gonzales to allow him to work outside Bernalillo County and to be unsupervised around children. Gonzales will now be allowed to live with his girlfriend and her children.

    Gonzales, 35, is charged with reckless abuse of a child resulting in death, tampering with evidence and conspiracy to commit tampering with evidence in the death of 10-year-old Victoria Martens in August 2016.

    Gonzales was previously required to live at a residence determined by the court’s Pretrial Services Division and was not supposed to have contact with minors unless he was supervised by another adult, among other restrictions. He was released from jail in November.

    Earlier this month, staff with Healthcare for the Homeless told the court’s Judicial Supervision and Diversion Program that Gonzales was at the facility with his girlfriend and her children and was around the children unsupervised for several minutes. Prosecutors then asked Brown to revoke Gonzales’ conditions of release.

    Brown denied the request at a hearing Tuesday morning and removed the condition that Gonzales must be supervised around children. Brown said he wasn’t sure why he ordered Gonzales to have no unsupervised contact with children in the first place. Gonzales was initially charged with killing Martens, but now investigators say the killing was committed by an unknown man.

    “Other than the crime for which he’s charged, there is no evidence that he’s ever been a danger to any child anywhere at anytime,” Brown said during the hearing.

    Bernalillo County District Attorney spokesman Adolfo Mendez said the office can’t appeal Brown’s ruling, but it is looking at other avenues of review.

    “We are disappointed that the district court’s response to Mr. Gonzales’s violation of conditions of release is increased leniency,” Mendez said in an email.

    Stephen Aarons, Gonzales’ attorney, said in an email that the “ruling today reflects how well Mr. Gonzales has done with pretrial supervision: full time employment, a new lease, no alcohol, no drugs, no violations of any kind.”

    Prosecutor Greer Rose said that while Gonzales’ girlfriend was filing for a housing voucher at Healthcare for the Homeless, Gonzales took her son to a nearby gas station to use the bathroom. Brown found that Gonzales did not violate his conditions by doing so.

    “The ruling today reflects how well Mr. Gonzales has done with pretrial supervision: full time employment, a new lease, no alcohol, no drugs, no violations of any kind,” Aarons said in an email. “The district attorney has spent 1,400 days and millions of taxpayer dollars prosecuting the wrong person. When will it end?”

    Brown also granted a defense motion to allow Gonzales to work outside Bernalillo County.

    Brown didn’t grant a defense request to remove Gonzales’ GPS monitor and left it to the discretion of pretrial services.

  • Judge rules Santa Fe teen can await trial out of jail

    Lawyers for a Santa Fe teenager charged with second-degree murder in connection with the 2018 shooting death of a Michigan man told a district judge during a Tuesday hearing that another man may have pulled the trigger.

    Zachary Gutierrez is accused of killing Richard Milan, 64, who police say had stopped in Santa Fe with his wife during a cross-country trip and was walking his dog near the intersection of Airport Road and Lucia Lane on the evening of Sept. 26, 2018, when he encountered a group of teens, exchanged words with Gutierrez and was shot twice.

    Gutierrez, 17, at the time of the shooting, was charged with the crime in 2018, but District Attorney Marco Serna dismissed the charges about a month later, saying he didn’t have enough evidence to present the case to a grand jury before a December 2018 deadline.

    Judge rules Santa Fe teen can await trial out of jail

    Zachary Gutierrez, center, walks out of District Judge Mary Marlowe Sommer’s courtroom Tuesday after she ruled he will be allowed to remain out of jail on electronic monitoring while awaiting trial on a second-degree murder charge. Matt Dahlseid/The New Mexican

    Serna’s office refiled the charges — first in juvenile delinquency petition and then through a grand jury indictment — in September.

    But Gutierrez’s attorneys said in court Tuesday the case against Gutierrez is far from open and shut, claiming another young man — a Mexican national charged in U.S. District Court with unlawful possession of a firearm — may be responsible for Milan’s death.

    Lawyers Stephen Aarons and Hugh Dangler said evidence has come to light in the year since the shooting that indicates it may have been Jesus Arrieta-Perez who shot Milan, then stood over his body laughing.

    “A lot of evidence suggest he [Gutierrez] is not the shooter, that Mr. Arrieta was,” Aarons said.

    Aarons said two of the three females in a group of five teens who allegedly witnessed the incident texted each other afterward, saying it “wasn’t fair” Gutierrez, now 18, had been charged.

    Arrieta-Perez’s attorney did not immediately respond to a message seeking comment late Tuesday.

    Aarons said Arrieta-Perez initially had said he didn’t see who shot Milan. But after being arrested earlier this year on a weapons charge and questioned by federal agents from the Department of Homeland Security, Arrieta-Perez claimed Gutierrez was the shooter.

    Aarons on Tuesday referenced a video recording of an interview in which he said agents told Arrieta-Perez “we have a lot to offer you in terms of your cooperation. … It’s going to depend on what you have to offer us.”

    Prosecutor Heather Smallwood told Judge Mary Marlowe Sommer at Tuesday’s hearing the state’s case is “not as weak” as the defense claimed, adding it wasn’t just Arrietta-Perez who told police Gutierrez was the shooter.

    “One of the girls also initially said that,” Smallwood said, referring to one of the three female witnesses, “and people in the car heard him say he did it.”

    According to online court records, Arrieta-Perez was charged with possession of a firearm or ammunition by an alien illegally or unlawfully present in the United States in March, after investigators found a 9mm handgun that was not registered to him under a mattress at his house in southwest Santa Fe.

    The Department of Homeland Security special agent who filed the criminal complaint against Arrieta-Perez said in his report he obtained a search warrant for Arrieta-Perez’s home based on evidence gathered by a Santa Fe County Sheriff’s deputy who was monitoring phone calls of two county jail inmates suspected of shooting into an occupied dwelling on Agua Fría Road in November.

    Special Agent Michael McCluskey said in his report that one of inmates, 19-year-old Said Awawd, called Arrieta-Perez from jail, asking — using code — what had become of his gun.

    According to McCluskey’s report, Arrieta-Perez assured him the gun was safe.

    Aarons said during Tuesday’s hearing that Arrieta-Perez is living at a halfway house in Albuquerque while his case is pending.

    Gutierrez — who has been on electronic monitoring in another, unrelated shooting case for the past six months — mopped tears from his face at his release hearing Tuesday as a state prosecutor argued he was a danger to the community and should be kept in jail.

    Sommer acknowledged the charges against Gutierrez are serious, noting he has a long history as a juvenile delinquent. But she ruled the defendant will be allowed to remain out of jail on electronic monitoring while awaiting trial on the second-degree murder charge.

    The judge said she based her decision in part on Gutierrez’s compliance with the terms of his release in a February case, in which the teen is suspected of firing shots with a gun he’d taken from another man during a drug deal at Alto Park, according to police.

    No one was injured in the incident and Gutierrez was released with an ankle bracelet in April.

    “I’m going to deny the state’s motion for a no-hold bond and allow you to continue on electronic monitoring,” Sommer said Tuesday.

    “But you have to do this perfectly, as you’ve been demonstrating. … I’m not taking this lightly, Zachary, you need to stay away from ‘the life,’ ” Sommer told Gutierrez. “… A person was shot dead by someone who was caught up in ‘the life.’ It shouldn’t have happened and it didn’t need to happen.”

    Sommer’s remarks were a reference to statements made Tuesday by Dangler. The attorney said Gutierrez used to be caught up in “the life … a sort of parallel world” inhabited by delinquent youth. But he added Gutierrez has been working full time for the past six months while under court supervision and has become a respectful and responsible person.

  • Woman acquitted in infant’s death won’t receive more time

    Babysitter was sentenced for other crimes but served two years while awaiting trial

    Rachel Smith

    A woman acquitted last month of causing the death of an infant she was babysitting at a Santa Fe motel will serve no additional time for possessing drug paraphernalia and obstructing a police investigation by initially pretending to be the child’s mother.

    A judge on Tuesday sentenced Rachel Smith, 27, to just under two years for those crimes. But counting time spent in jail and on electronic monitoring, Smith already had undergone more than two years of incarceration while awaiting trial.

    Authorities charged Smith in the 2017 death of 3-month-old Jonathan Valenzuela after medics arrived at the Cerrillos Road motel in response to her frantic 911 call reporting the child was not breathing. Responders found the baby dead.

    Smith said at trial she originally claimed to be the child’s mother in order to protect the baby’s teenage mother from getting in trouble.

    The boy had no visible injuries, and police initially speculated that Smith — who admitted she used heroin in the bathroom while the boy and his 2-year-old sister slept — may have smothered the child by accidentally rolling over on him. But when an autopsy found the child died of strangulation and blunt force trauma, Smith was charged with child abuse resulting in death.

    About a month before the case was set for trial in July, the state got more time to investigate evidence that suggested the child’s mother, Angel Arellano, may have inflicted the child’s fatal injuries. Though prosecutors never charged Arellano and proceeded with their prosecution of Smith, defense attorney Stephen Aarons raised the issue at trial.

    Medical examiner Dr. Heather Jarrell testified that in her opinion the infant’s injuries most likely were inflicted during the time he was under Smith’s care, but she acknowledged under cross-examination it was possible the injuries were inflicted much earlier, while the baby was with his mother.

    A jury found Smith not guilty of child abuse resulting in death, but convicted her of obstructing an investigation and possession of drug paraphernalia. The maximum penalty for each of those misdemeanors is 364 days in jail.

    The child’s mother did not attend the sentencing. Smith declined to comment after the hearing, saying only, “Not right now. I’ve been through enough.”

    • By Phaedra Haywood phaywood@sfnewmexican.com
    • Reprinted with permission

  • Rachel Smith will serve no additional jail time in child death case

    SANTA FE — A woman who was acquitted of killing an infant at a Santa Fe motel in March 2017 got credit for time served while awaiting trial for convictions on lesser charges and will no longer be incarcerated.

    In a trial that began in June, Rachel Smith, 27, was found not guilty of child abuse resulting in death after she was charged killing 3-month-old Jonathan Valenzuela at the Thunderbird Inn on Cerrillos Road. Smith was babysitting Jonathan and his older sister for their then 17-year-old mother.

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    Rachel Smith talks with her attorney Stephen Aarons after her sentencing hearing in Santa Fe on Tuesday. (Eddie Moore/Albuquerque Journal)

    But Smith was found guilty of one count of obstructing an investigation of child abuse and neglect for initially lying to police about being the children’s mother as well as one count of possession of drug paraphernalia.

    Smith faced two years in jail on those convictions. But since she was arrested in March 2017 and was later put on house arrest, which counts as incarceration, Smith faces no additional jail time.

    “You have no further sentence to serve in this case,” Santa Fe District Court Judge Mary Marlowe Sommer told Smith at a sentencing hearing Tuesday.

    According to Smith’s testimony at trial, Jonathan stopped breathing when she was feeding him with a bottle around 5 a.m. March 11, 2017. Smith went outside her motel room and started screaming for help, prompting bystanders to come to her aid. Police arrived and were unable to revive Jonathan.

    Although Smith, who said she was addicted to heroin at the time, had admitted to using heroin the night before, she has always denied hurting the infant. Smith has since sought treatment for her addiction, and Marlowe Sommer urged Smith to continue her treatment on Tuesday.

    Investigators initially believed Smith may have suffocated Jonathan by accidentally rolling on top of him as she slept, but an autopsy later revealed that he died of blunt force trauma to the head.

    One of Smith’s lawyers, Stephen Aarons, argued that Jonathan’s mother, Angel Arellano, caused the fatal injuries before leaving the children with Smith, which Arellano denied.

  • Smith found not guilty in baby’s death

     

    Smith, 28, was found guilty on two counts of obstructing the investigation into the child’s death and drug possession. Because she has already served more than two years in custody on electronic monitoring, her lawyer asked she be released for time served.

    Chief Judge Marlowe Summer agreed. Smith’s remaining sentencing is still pending.

    Trembling slightly, both Smith and a defense attorney, Hugh Dangler, appeared to cry after the verdict was read. Several members of Smith’s family brought their hands together in prayer to thank Dangler as the courtroom emptied.

    “I am extremely grateful for the jury’s work … and extremely grateful for their decisions,” Dangler said.

    The baby’s mother, Angel Arellano, 20, exited the courtroom, sobbing in a summer dress.

    On March 11, 2017, Smith had been babysitting the infant, Jonathan Valenzuela, and his 2-year-old sister at her room at the Thunderbird Inn, when she awoke to find the baby had stopped breathing.

    Smith, from Glorieta, admitted to police she had injected heroin the night before the baby’s death, and was indicted on charges of reckless disregard, which could incur an 18-year prison sentence. Police initially believed Smith, who had been watching the children for 33 or 34 hours, may have rolled over the baby in her sleep.

    An autopsy report later showed there had been bleeding in Valenzuela’s brain, likely caused by blunt force trauma, and broken bones in the infant’s neck, consistent with strangulation.

    Prosecutors for the state asked during the trial if she had harmed the baby in a stage of drug withdrawal, as the heroin left her system.

    The trial was postponed in March when new evidence raised questions over whether the baby’s mother, Arellano, might have shaken or injured the baby before leaving him in Smith’s care. Arellano has said she did not harm her son.

    Dr. Heather Jarrell, a neuropathologist with the New Mexico Office of the Medical Investigator, and a witness for state prosecutors, said earlier this week the injuries could have been caused within 24 or 48 hours of the baby’s death.

    The jury, composed of six men and six women, deliberated for two hours after closing arguments concluded Tuesday and returned Wednesday morning just after 11 a.m.

    “This is a mysterious death,” Dangler said. “And will probably remain so.”

     

    By Rebecca Moss, Santa Fe New Mexican (C) 2019 Reprinted with Permission

    Sitter’s lawyer requests immunity for mother in testimony about dead boy

    Rachel Smith has spent the better part of the past two years in the county jail awaiting trial on a charge that she caused the death of a 3-month-old infant left in her care in a Cerrillos Road motel room in 2017.

    But Smith’s defense attorney and prosecutors recently told a state district judge that new evidence raises the possibility that the child’s mother, Angel Arellano, might have inflicted the injuries that led to the death of Jonathan Valenzuela.

    Arellano had dropped off the boy and his 2-year-old sister at the motel to be cared for by Smith.

    State District Judge Mary Marlowe Sommer postponed Smith’s trial this month — just three days before it was set to begin — to give investigators time to pursue new leads in the case, including allegations that Arellano confessed to an acquaintance she had hurt her son.

    “It would be extremely difficult, if not unethical, for the state to go forward with the trial at this point without setting our minds at ease that we do indeed have the right person in the courtroom,” Assistant District Attorney Larissa Breen said during a court hearing.

    Smith is now out on bail with electric monitoring. She still faces a first-degree felony charge that could send her to prison for up to 18 years.

    Arellano’s attorney, Marc Edwards, said Friday that he had just taken her on as a client and could not comment for this story. Arellano hasn’t been charged.

    Smith’s defense lawyer, Stephen Aarons, recently filed a motion asking the court to approve an arrangement that he hopes will encourage the child’s mother to testify on Smith’s behalf at trial, even if it means implicating herself.

    Aarons is asking the court to grant “use immunity” to Arellano, who is listed as a witness for the state. Such immunity would prevent prosecutors from using anything she said on the stand during Smith’s trial to prosecute her for her son’s death.

    The immunity would not prevent the state from prosecuting her based on other evidence.

    Without the immunity, Aarons says in his motion, Arellano will invoke her Fifth Amendment right against self-incrimination by remaining silent during Smith’s trial.

    Arellano attempted to abort her son by self-harm while pregnant, screamed that she did not want the baby and threatened suicide before he was born, the lawyer says in his motion. He also wrote that Arellano gave the baby to Smith about 33 hours before his death. “The baby could have been grabbed by the throat and violently shaken before this final exchange,” Aarons wrote.

    Smith assumed care of Jonathan and his sister on March 10, 2017, according to police reports. She told police she fed him and put him to bed but awoke the next morning to find he was not breathing. She then called 911.

    The child had no visible injuries. Smith told investigators she had used heroin the night before, and police originally speculated she may have rolled over on the child in the night.

    An autopsy revealed the boy died from bleeding in the brain caused by blunt force trauma.

    The father of a man with whom Arellano — then 17 — was involved at the time has since told police that Arellano told his son that she had harmed the boy before delivering him to Smith, according to court filings.

    Assistant District Attorney Breen is opposing Aarons’ motion, saying that granting Arellano immunity would devastate the state’s chances of prosecuting her if the Santa Fe Police Department’s renewed investigation reveals Arellano was responsible for the infant’s death.

    “The state has no doubt Defendant would like to have Ms. Arellano have leave to testify she may have actually killed [Jonathan], if that is indeed what she will say,” Breen wrote in a motion filed Friday in state District Court, “but the court has to look at the potential detriment to the public interest in getting justice for [the baby’s] death.”

    A spokesman for District Attorney Marco Serna said in an email that Smith’s attorney hasn’t provided documentation to support new allegations involving Arellano.

    Woman held in infant death granted release in Santa Fe

    Woman held in infant death granted release
    Rachel Smith sits with attorneys during a hearing in District Court on Tuesday. Smith was being held in the death of 3-month-old she was baby-sitting.PHAEDRA HEYWOODTHE NEW MEXICAN

    Rachel Smith, 27, had been in jail since her March 2017 arrest in connection with the death of the baby boy at a Cerrillos Road motel.

    The infant’s mother — then 17 years-old — had left two children with Smith for five days preceding the death, according to court records, and Smith was living with the children in the Thunderbird Motel when she woke up one morning to find the baby was not breathing.

    Investigators originally speculated that Smith — a heroin addict who admitted shooting up in the bathroom while she was watching the boy and his 2 year-old sister — might have rolled over on the boy. However, an autopsy later revealed the infant had bleeding in his brain consistent with “blunt force trauma.”

    Smith’s defense attorney, Stephen Aarons, filed a motion in November seeking to have the charges dismissed on grounds that her rights to a speedy trial and discovery of evidence had been violated. Among other things, he argued that it took prosecutors about a year to produce Children Youth and Family Department records that could include evidence that the infant’s mother had abused him.

    State District Judge Mary Marlowe Sommer postponed her decision on that motion during a hearing Tuesday, saying she needed to review the Children Youth and Family Department records before ruling.

    Aarons also filed a motion challenging one of the state’s expert witnesses, saying the proposed witness’s opinions on “shaken baby syndrome” as it relates to pinpointing when the child received the fatal injury are not typical and have been contradicted in literature that says determining time of injury is the unreliable “Achilles heel” of forensic pathology.

    Sommer also postponed ruling on that motion Tuesday, directing Aarons and Assistant District Attorney Larissa Breen to expand written briefs on the issue before the judge considers the matter again next month.

  • SETTING THE RECORD STRAIGHT ON EXPUNGEMENT

    By Paul Haidle, Senior Policy Strategist, Policy

    People keep asking me, “Why does the ACLU support expungement?” It’s a fair question. We have a well-deserved reputation as an organization that fights for public access to information related to functions of government. We make frequent use of Freedom of Information Act requests, or IPRA as it is known in New Mexico, to make the case for the better and more efficient use of government. So why did the ACLU of New Mexico work with Representative Antonio “Moe” Maestas this year to draft a bill that would remove certain criminal  records from public view?

    It boils down to this: A criminal record is a fundamentally different type of public record than other documents that allow individuals to assess the credibility and function of government.

    This bill gets at some of the most important tools for fighting recidivism: access to good jobs, safe housing, and educational opportunities.

    Criminal records in this day and age stick with you for life. Even a mere arrest without conviction can have consequences decades after the fact. A felony conviction can create permanent barriers that stand in the way of people’s ability to move on with their lives. These records are a kind of “scarlet letter” that people with convictions carry for life.

    According to the National Employment Law Project, one third of all American adults have a prior arrest or conviction record . Prior to 9/11, certain industries were more accessible to people with criminal records; now the Society of Human Resource Members says 92 percent of its members conduct background checks on some or all of their employees.

    It’s because of this stigma and the loss of opportunity for people with a criminal record that the ACLU not only supports expungement, but views this legislation as a critical tool for increasing public safety. This bill gets at some of the most important tools for fighting recidivism: access to good jobs, safe housing, and educational opportunities.

    Open government advocates and some members of the press have opposed expungement legislation in New Mexico arguing that the public and the press have a right to know about a person’s criminal history. We agree with that position. Nothing in this legislation would limit the press’ ability to report on criminal cases and nothing in the bill requires them to erase stories they have run. Similarly, this bill does not expunge records for law enforcement purposes and sealed court records could be opened by a judge for good cause, like any other sealed record in New Mexico.New Mexico also has one of the highest rates of children with incarcerated parents, a known Adverse Childhood Experience (ACE) factor. By allowing a parent with a criminal record the opportunity to access safe housing and good jobs, this legislation will improve outcomes for many New Mexican children.

    Nothing in this legislation would limit the press’ ability to report on criminal cases and nothing in the bill requires them to erase stories they have run.

    What this bill actually does is allow a person to request to have a publicly available criminal record removed. Depending on the seriousness of the charges, a person will have to wait longer to be eligible to expunge. Certain crimes, such as sex crimes and crimes against children, are never eligible for expungement. A person must petition the court and give notice to the District Attorneys, the Department of Public Safety, and the arresting agency, each of whom are allowed to object to the expungement on public safety or other grounds. The District Attorneys are allowed to notify any victim in the case. Finally, the court must balance whether the expungement petition is “in the interests of justice” by considering the age of the offense, the nature of the offense, evidence of rehabilitation, and reasons why the public should still have access to the record.

    We believe this bill strikes the right balance – it has significant public safety protections while also giving an individual and their family the chance to move forward with their lives.

    Las Vegas Expungement Lawyer

  • Sitter’s lawyer requests immunity for mother in testimony about dead boy

    Rachel Smith has spent the better part of the past two years in the county jail awaiting trial on a charge that she caused the death of a 3-month-old infant left in her care in a Cerrillos Road motel room in 2017.

    But Smith’s defense attorney and prosecutors recently told a state district judge that new evidence raises the possibility that the child’s mother, Angel Arellano, might have inflicted the injuries that led to the death of Jonathan Valenzuela.

    Arellano had dropped off the boy and his 2-year-old sister at the motel to be cared for by Smith.

    State District Judge Mary Marlowe Sommer postponed Smith’s trial this month — just three days before it was set to begin — to give investigators time to pursue new leads in the case, including allegations that Arellano confessed to an acquaintance she had hurt her son.

    “It would be extremely difficult, if not unethical, for the state to go forward with the trial at this point without setting our minds at ease that we do indeed have the right person in the courtroom,” Assistant District Attorney Larissa Breen said during a court hearing.

    Smith is now out on bail with electric monitoring. She still faces a first-degree felony charge that could send her to prison for up to 18 years.

    Arellano’s attorney, Marc Edwards, said Friday that he had just taken her on as a client and could not comment for this story. Arellano hasn’t been charged.

    Smith’s defense lawyer, Stephen Aarons, recently filed a motion asking the court to approve an arrangement that he hopes will encourage the child’s mother to testify on Smith’s behalf at trial, even if it means implicating herself.

    Aarons is asking the court to grant “use immunity” to Arellano, who is listed as a witness for the state. Such immunity would prevent prosecutors from using anything she said on the stand during Smith’s trial to prosecute her for her son’s death.

    The immunity would not prevent the state from prosecuting her based on other evidence.

    Without the immunity, Aarons says in his motion, Arellano will invoke her Fifth Amendment right against self-incrimination by remaining silent during Smith’s trial.

    Arellano attempted to abort her son by self-harm while pregnant, screamed that she did not want the baby and threatened suicide before he was born, the lawyer says in his motion. He also wrote that Arellano gave the baby to Smith about 33 hours before his death. “The baby could have been grabbed by the throat and violently shaken before this final exchange,” Aarons wrote.

    Smith assumed care of Jonathan and his sister on March 10, 2017, according to police reports. She told police she fed him and put him to bed but awoke the next morning to find he was not breathing. She then called 911.

    The child had no visible injuries. Smith told investigators she had used heroin the night before, and police originally speculated she may have rolled over on the child in the night.

    An autopsy revealed the boy died from bleeding in the brain caused by blunt force trauma.

    The father of a man with whom Arellano — then 17 — was involved at the time has since told police that Arellano told his son that she had harmed the boy before delivering him to Smith, according to court filings.

    Assistant District Attorney Breen is opposing Aarons’ motion, saying that granting Arellano immunity would devastate the state’s chances of prosecuting her if the Santa Fe Police Department’s renewed investigation reveals Arellano was responsible for the infant’s death.

    “The state has no doubt Defendant would like to have Ms. Arellano have leave to testify she may have actually killed [Jonathan], if that is indeed what she will say,” Breen wrote in a motion filed Friday in state District Court, “but the court has to look at the potential detriment to the public interest in getting justice for [the baby’s] death.”

    A spokesman for District Attorney Marco Serna said in an email that Smith’s attorney hasn’t provided documentation to support new allegations involving Arellano.

    (c) 2019 Santa Fe New Mexican, reprinted with permission

  • Marquis Who’s Who in the World

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  • Court questions appeal in Fabian Gonzales case

    BY KATY BARNITZ / JOURNAL STAFF WRITER
    Court questions appeal in Fabian Gonzales case

    Fabian Gonzales sits with his attorney, Stephen Aarons, left, and his former lawyer, Tom Clark, right, at a hearing in District Court in September. (Adolphe Pierre-Louis/Journal)

    ALBUQUERQUE, N.M. — The state Court of Appeals is asking the District Attorney’s Office to explain whether its appeal in the Fabian Gonzales case should be dismissed as moot following his cousin’s no contest plea.

    Gonzales, along with his cousin Jessica Kelley, are defendants in a case centered on the death of 10-year-old Victoria Martens. In an agreement last month with the DA’s Office, Kelley pleaded no contest to reckless child abuse resulting in death, tampering with evidence and aggravated assault. She also promised to testify against Gonzales.

    Prosecutors in September appealed Judge Charles Brown’s decision to exclude statements Jessica Kelley made in jail, along with evidence of her drug use and prior convictions.

    Gonzales had been set for trial in mid-October, but the appeal put his case on hold indefinitely.

    In an order filed last Thursday, the Court of Appeals noted that Kelley’s plea agreement and availability to testify may have rendered moot the argument asserted in the appeal.

    A spokesman for the DA’s Office said prosecutors will file a response in coming days.

    Gonzales’ attorney Stephen Aarons filed a response asking the court to dismiss the appeal and send the case back to the District Court for trial.

  • Probation for father, son in rape case

    A father and son accused of jointly raping a 15-year-old girl at a Fiesta de Santa Fe party in 2015 pleaded no contest Monday to conspiring to sexually assault the girl and threatening to harm her if she went to police.

    The plea was part of an agreement with the District Attorney’s Office that calls for both men to be placed on probation.

    Prosecutors dismissed eight counts of criminal sexual penetration and two counts of criminal sexual contact against 44-year-old Charles Galvan and six counts of criminal sexual penetration against his 23-year-old son, Carlito Quintana Speas.

    District Judge T. Glenn Ellington sentenced Galvan to three years probation after accepting his plea. He sentenced Quintana Speas, who has been serving time on a federal bank robbery conviction while this case was pending, to five years probation.

    The charges to which the men entered pleas exposed each to as many as six years in prison, but their suspended sentences in favor of probation were part of the deal agreed to by prosecutors.

    The state also agreed not to apply a one-year habitual offender enhancement against Galvan, who was convicted in the past of heroin trafficking, child abuse and aggravated fleeing of a police officer.

    The two men were charged with raping the girl, who does not live in New Mexico, after she told school officials that during a visit to Santa Fe in September 2015 she had encountered Quintana at a party where she took part in using drugs and drinking, then went with him to the home of one of his relatives, where Quintana Speas shared a room with his father.

    The girl said she and Quintana Speas got in bed and were joined by Galvan, after which the two men sexually assaulted her.

    The girl told the men on several occasions to stop, according to an arrest affidavit. Police say the men later threatened to kill her if she told anyone about the incident. The teenager told family members about the incident during the ensuing days and months but it wasn’t until March 2016, after she told authorities at her school about the incident, that the matter was reported to Santa Fe police.

    Ellington said when sentencing the men Monday that the state was “getting as much as it can” in the case, which he said had been “a mess since the beginning,” with many discovery issues and the state having difficulty even arranging for the defendants to be brought to court hearings.

    Asked by the judge why the deal was a good one for the state, Assistant District Attorney Martin Maxwell said the accuser has a high risk pregnancy and was concerned about having to testify at trial.

    Maxwell said the state was also concerned about the age of the case. It had been pending for more than three years and Quintana Speas had filed a motion to dismiss for lack of a speedy trial.

    Asked to comment following the hearing, District Attorney Marco Serna said in an email: “We must always remember that victims of sexual assault and violence endure unimaginable pain and anguish and… may not want to participate in the prosecution process.

    Although we have had constant communication with the victim’s family, we have recently lost contact with the victim who showed indications of hesitation in November of last year. Rather than gamble on the small chance we’d be able to find the victim to testify, we ensured that these two individuals are convicted felons.”

    When the men were asked if they wanted to say anything in court Monday, Quintana Speas declined, but Galvan spoke.

    “I’m already almost 45 and I’ve never been convicted of no violent crime,” Galvan said, adding he was not a danger to the community and that, if he was, he already would have been convicted of a violent crime by now.

    “This is an unlucky and unfortunate situation… let’s leave it at that,” Galvan said.

    Ellington responded that Galvan was “hardly a model citizen.”

    “I’ve had to revoke your conditions of release on a couple of occasions,” Ellington said, adding that Galvan had been charged with “many violent things” in the past but was simply lucky he’d never been convicted of them.

    The judge said the state was in “an untenable position” trying to prosecute this case with its many evidence problems including intimidation of the witness which, the judge said, he couldn’t be sure hadn’t continued while the case was pending.