Eye On Modesto

Thoughts and observations about Modesto and Stanislaus County

Archive for the day “December 20, 2011”

Kari Abbey Prelim Summations the Long Version

By Emerson Drake

District Attorney Dave Harris

The afternoon started out quietly with D.A. Harris sitting at the table softly reciting the events of last week’s hearings.  He started by describing the various ways Rita Elias had made the world aware of where she lived over the summer.  How her ex-common law husband had brought her children over to visit about ten times and always to the 1708A Donaldson address.

And how, when arrested in August, Rita had given the 1708A address to the Probation Department including providing them with a diagram of the apartment and where her bedroom was in relationship to those of others.  She even had a cable bill in her name at that address since cable service was part of the overhead she paid.  Just three weeks prior to the shooting she had told Deputy Hooper that she lived there as he documented in a report.

James Abbey had told the officers the night of the shooting he and Kari were there to collect the rent or evict them that night.  He also had admitted to Officers Kari and Rita had gotten in a fight with Kari ending up on top of Rita, pummeling her until James Abbey told her to stop. Harris reminded the court another witness had related how Elias said if she hadn’t been wearing heals Abbey wouldn’t have won.  James Abbey’s response to her was “bring it on.”  He then he told Elias “if you don’t leave I’ll sick Kari on you again.”

We were reminded of the times where Abbey had used her relationship withModestopolice and her badge to remain in control of situations when police were called. Kari and James Abbey and Bennie Taylor sometimes used ‘self help’ up to and including violent acts against tenants as Harris called it to perform illegal evictions of tenants behind in their rent payments.

DA Harris sited Daluiso vs. Boone, a Supreme Court decision that when performing unlawful evictions anything that came afterward was illegal.

Harris then pointed out the 106 plants were many times more than the Compassionate Act allowed and while acknowledging James Abbey had a recommendation, it didn’t cover this many plants and that James Abbey had admitted to investigators he had sold some of his harvested buds.  The second recommendation from someone in the foothills didn’t count since there was no evidence that James was the other persons’ caregiver. The third card was expired and wasn’t valid.

Harris went on to the embezzlement charge, reminding the Judge of the statements of two co-workers who had complained to her supervisor that Kari was spending 50% of her time on non-work related business.  The supervisor works in another location, so direct supervision was impossible.  The co-workers complained that she spent 50% of her time on her property management, and that there was a “for sale” and a “for rent” sign in her county issued car.

Harris also points out that ‘flex time’ excuse given by the defense doesn’t hold water.  And that Abbey had used her professional relationships to get fellow Officers to perform evictions for her with out Abbey having to pay the fee the Sheriff’s Office charges landlords.

Harris’ delivery through out his summation is calm and deliberate and he remained seated the entire time.

Defense Attorney Michael Rains

Now it was Defense attorney Michael Rains’ turn.  He said he felt the need to educate the people in the courtroom about prelims and what they were for but to be honest it seemed like he was addressing the judge through, or should I say instead, of  the observers in the courtroom. He reminded everyone of how his specialty is defending accused police officers and he had tried cases in many different counties but his experience here was limited and he hoped this county was like the others. He was concerned that this case might be a public relations ploy for the District Attorney’s office. 

Defense Attorney Rains’ style is to pace and apply histrionics (exaggerated expression or emotion) to his delivery.

He tells the court most times at prelims the prosecutor is smug and confident and while he doesn’t accuse Harris of this it reminds one of the act in Julius Caesar when Anthony says Brutus is an honorable man but means the exact opposite.  Defense attorney Harris says that most if not all of these charges should be thrown out and claims it was self-defense.  He also says that “cops will be charged with murder all the time if this is allowed to continue”. 

Rains uses the phrase “crafty claims” by the prosecution and denies that the facts the DA is using are real.  He actually suggests that just because she had a cable bill in her name at this address, doesn’t mean that she lives there.  Rains quotes Sally Pantoja saying that she didn’t see a fight between Abbey and Elias and he claims that the autopsy shows hair was pulled out of the scalp, but no hair was found at the scene, suggesting that the fight took place somewhere else.  

According to testimony the autopsy stated there was bruising on the scalp, suggesting that hair was pulled.  It was never suggested that hair was pulled from the scalp.  He suggested that the autopsy evidence of Rita having blunt force trauma to her hands and face could have been Elias hitting Abbey, not the other way around. 

Rains then tries to work in some hearsay that the judge had not allowed in hearings last week.  Harris objects and is sustained.  Rains says that Sally Pantoja was a credible witness despite the fact that she wouldn’t answer her door twice when police were trying to find witnesses to what happened.  Presumably she didn’t answer because she was on probation and under the influence of an illegal substance. 

 He actually claims that Kari Abbey was obligated to shoot Rita Elias as a police officer, despite her not being there in an official capacity.  He says the DA is waging a smear campaign against his client.  He also says the conspiracy case is a “wobbler”, meaning it could be a felony or misdemeanor.  He tries to make the claim that Bennie Taylor wasn’t there at all three instances of illegal evictions, so how can it be a conspiracy? 

He calls Quantana, who was assaulted by Bennie Taylor during an attempt to collect past due rent, a professional squatter. In the attempt to evict Quantana, the Abbey’s refused to supply a rental agreement despite his having paid about $1200 as a deposit.  As a result, Mr. Quantana was forced to generate a false rental agreement in an attempt to obtain electricity.  This would be the third time the Abbeys have been shown to either turn off the electricity as they did at the 1708 Donald home, the night of the shooting, and during the attempted eviction onWiley Drive.  

Rains reminds the court that he introduced eighteen rental agreements where the renter was required to pay for the electricity and had Investigator Hermosa read where the renter was required to provide the electricity in all those instances.

As far as the embezzlement charge is concerned, he suggests they have nothing but hearsay, with disgruntled co-workers alleging that she was only working a50% of the time.  He actually says the law language in the embezzlement charge is ambiguous at best and one is required to use the “rule of reasonableness”.

Once again, Rains accuses the DA of a smear job and tries to blame Abbey for the marijuana grow and tries to play it off as a medical grow, despite the fact log books and scales were found and James Abbey told police officers that he sold it.

Rains says that Kirk Bunch perjured himself by saying the MID bill found in Abbey’s bedroom was for the house and shed.  Rains pointed out that TID services that area. 

When he talks about the child endangerment charge, he reminds the court of the two pictures of the shotgun found in the couch with the child’s toy found near the trigger in one, but it was moved in the second one. 

I smell a rat.

Defense attorney Rains suggests the evidence was planted and said quite dramatically, “I smell a rat”.  Defense Attorney Rains’ presentation seemed more like a stage actors dramatic portrayal that’s been over-dramatized and filled with hyperbole. 

District Attorney Harris’ rebuttal.

DA Harris discussed the two pictures of the shotgun, pointing out to the court, the first one with the toy next top the trigger was taken to show how the weapon appeared when they found it.  The second one shows that the four shotgun shells had been removed from the gun, so obviously the movement of the toy was inconsequential.  Harris points out “to have guns where a six year old can reach them is inherently dangerous”. 

Concerning the marijuana grow, three cards were found.  One was expired and the second gave no indication that James Abbey was a caregiver to the card holder, the third was James Abbey’s, but the Compassionate Care Act doesn’t allow that quantity of plants and never allows sales.   The court is reminded that James Abbey admitted to investigators that he sometimes sold marijuana. The path that leads to the horse trailer in back that held sheriff’s posse tack and saddles, is where the three potted marijuana plants were found by investigators and where they noticed the strong smell of marijuana.

Mortgage paperwork for the house and shed, although in Kari, James and Denise Abbeys name, was found in Kari Abbey and Bennie Taylor’s bedroom, showing that Kari Abbey had been paying the mortgage for the house and shed and the electricity bill for both the house and the shed.

If you count the properties owned by Kari Abbey, James Abbey and Bennie Taylor, along with the company PLM, and now the recently introduced 18 more properties, it’s possible that Kari Abbey was managing 31 properties.  Deputies found a rental and a for sale sign in her county issued car.  Kari Abbey had been using her professional relationships with fellow deputies to deliver eviction notices and wasn’t paying the county mandated fee to the sheriff’s department. 

On the night of the shooting, James Abbey told investigators “we were going to get the rent or we were going to evict them”.  

Conspiracy is defined as an unlawful agreement to perform an unlawful purpose or act, so by James and Kari going to “get the rent or evict them”, it shows there was a conspiracy.  Defense attorney Rains had made claims that a landlord can go into a home at anytime, so therefore, there was no “trespass” that night.  DA Harris pointed out the law Rains quoted was from 1946 and there have been many changes regarding rental rights since then.  When a renter is in the home, they have the same legal rights as if they were the owner.  Kari, James or Bennie entering any rental property where somebody was already in the home is trespassing.  He says the law has to protect “lesser individuals” and that Abbey never identified herself as a police officer in the performance of her duty and as such, never gave Rita Elias the chance to surrender. 

He reminds the court that Jose Flores, Kari’s apartment manager, stated to investigators that Kari said to Rita, “come on, if you want to fight me, come back up here”, when Rita was in the street preparing to leave.  Kari goaded her into returning.  Its Rita returning back to the duplex that Judge Ricardo Cordova says justifies the self-defense.

After the hearing Rains spoke to observers, and mentioned he was concerned the DA would re-file the murder or manslaughter charges.  He plans to continue preparing a defense in case that happens.

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