Preliminary hearing ends for Richmond rape case

The seventh and youngest defendant, 16-year-old Cody Smith, was not held to answer on any charges and was ordered released from juvenile hall tonight.

Charges were reduced for three of the defendants, but five of the six are still facing charges that make them eligible for life sentences if they are convicted, prosecutor Dara Cashman said.

The sixth defendant is facing a maximum of eight years in prison, Cashman said.

The ruling today wraps up the preliminary hearing in the case, which began Nov. 15 in Contra Costa County Superior Court in Martinez and included testimony from 20 witnesses.

Cashman said that the case was made particularly difficult by the fact that none of the witnesses wanted to cooperate with police and nobody was able to provide investigators with a coherent or consistent picture of what happened the night of Oct. 24, 2009.

The case was further complicated by the fact that the victim didn't remember the attack.

Although the time frame of the actual assault is still vague, the victim said she had gone to the school's homecoming dance that night, but got bored and left at about 9:30 p.m.

She was about to call her father to pick her up when Smith invited her to come drink with him and his friends, according to a sexual assault nurse who testified at the hearing.

The victim told the nurse that she drank brandy, got dizzy and passed out. The next thing she remembers is waking up the next day in the hospital with a tube down her throat, according to the nurse.

Police officers testified that they found the victim shortly before midnight in a dark courtyard area on the north side of campus. She was unconscious and bent over a metal bar underneath a picnic table with her dress pulled up to expose the lower part of her body, which was bare.

The victim, whose blood alcohol level was .355 percent, was unconscious for part of the attack, but at other times witnesses said she was crying, whimpering, screaming for help and kicking her assailants, detectives said.

During the attack, Richmond resident Manuel Ortega, 20, allegedly tried to force the victim to give him oral sex. When she didn't, he allegedly began punching and kicking her in the head, according to detectives.

Ortega also allegedly stepped on the victim's head while a second defendant, Jose Montano, 19, allegedly raped her, witnesses allegedly told detectives.

Ortega was arrested as he was leaving the area.

Judge Gregory Caskey found sufficient evidence to bring Ortega to trial on charges of forcible rape while acting in concert; forcible oral copulation while acting in concert; penetration with a foreign object for allegedly trying to ram a skateboard into the victim's vagina; robbery and assault with force likely to cause great bodily injury. The assault charge also included an enhancement for allegedly causing great bodily injury to the victim.

San Pablo resident Ari Morales, 17, was arrested two days after the attack.

During the hearing a detective testified that Morales confessed to inserting the antenna of a walkie-talkie into the victim's vagina, urinating on her and taking her ring.

Caskey found that there was sufficient evidence to hold him on charges of rape by a foreign object while acting in concert. Charges that Morales robbed the victim, however, were dismissed.

After his arrest, Pinole resident Marcelles Peter, 18, allegedly admitted to police that he put his finger in the victim's vagina. His DNA was also found on a used condom, according to a DNA expert who testified.

Caskey ordered Peter held to answer on a charge of penetration with a foreign object while acting in concert.

Several witnesses said that Jose Montano, a 19-year-old Richmond resident, was the first person to rape the victim, although his attorney argued that another witness said he just pretended to rape her, then jumped up and said he was just kidding.

Montano was held to answer on a charge of forcible rape while acting in concert. Caskey said he had no doubt Montano had raped the victim.

Richmond resident Elvis Torrentes, 22, was allegedly flirting with the victim before the attack began. She was extremely drunk and, when she sat on his lap, he allegedly put his finger in her vagina, according to witness statements.

Caskey said he found sufficient evidence to bring Torrentes to trial on a charge of penetration of an intoxicated person. He did not, however, find sufficient evidence to support a charge of rape with a foreign object while acting in concert.

None of the witnesses said anything about seeing the sixth defendant, 44-year-old Richmond resident John Crane Jr., at the school that night, but his semen was found all over the victim and on evidence found at the scene, according to a DNA expert.

Crane was arrested two months after the alleged attack on a cold-hit DNA match, police said.

He was held to answer today on a charge of forcible rape while acting in concert, despite an argument made by his attorney that the victim might have had sex with him sometime earlier that day.

According to Cashman, the charges that the defendants acted in concert combined with the charge that a co-defendant, in this case Ortega, allegedly caused great bodily injury to the victim makes them all eligible for life sentences.

Torrentes is the only defendant of the six who is not charged with acting in concert. He is facing a maximum of eight years in prison.

Smith had originally been charged with rape by a foreign object while acting in concert, but Caskey said there was insufficient evidence to hold him, despite his opinion that "His (Smith's) conduct that evening can only be described as horrible," Caskey said.

Smith's attorney David Headley said Smith had turned 15 three weeks before the rape and described him as "A rotten little kid, perhaps, but still a kid."

Smith's father, Mark Smith, said outside the courtroom that Smith had "a good ass-whipping" coming to him, but that they planned to take him out to dinner first.

Smith's cousin, Desirae Smith, who has raised him for the past nine years, said Smith had not been the victim's friend since seventh grade, but that she was sorry for what happened to her.

The six other defendants are scheduled to be arraigned Jan. 10 on the amended charges.

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