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California Appeals Court Reverses Dismissal of Charges Against Prisoners Charged in Pelican Bay Riot

by David M. Reutter

On June 9, 2021, the California Supreme Court declined to hear an appeal to a decision handed down by the state’s First District Court of Appeal on March 29, 2021, reinstating most charges that a trial court had dismissed against four prisoners involved in a riot at Pelican Bay State Prison nearly four years earlier. See: People v. Abelino, 2021 Cal. LEXIS 4063.

The May 24, 2017, incident started after two prisoners got into a fight in a prison yard. Guards broke up the fight with batons and O.C. (Oleoresin Capsicum) grenades, as well as with a 40-milimeter shot to the leg of one of the combatants. At that point, video records showed that other prisoners got up from the prone position in which they had been ordered to lie and rushed the responding guards.

During the ensuing melee, guards in observation posts fired 20 rounds. Of those, five were for effect, meaning they were meant to hit a prisoner, while the others were warning shots fired into the ground. Five prisoners suffered gunshot wounds, among seven injured during the incident. Eight of the guards who were attacked were injured severely enough to require hospital treatment, two of them so significantly injured that they may never be able to return to work in law enforcement. [See: PLN, Feb. 2018, p.63.]

The Del Norte County District Attorney then filed a felony complaint against prisoners Edgar Abelino, Issajan Osman, Francisco Hernandez, and David Tegaban, charging them with 17 counts including torture, mayhem and battery by a state prisoner on a non-prisoner, as well as eight counts of assault by a state prisoner by means of force likely to produce great bodily injury on the eight guards.

At trial, the state argued that the natural and probable consequences of participation in such a riot were the torture, mayhem, battery and assault for which the prisoners were charged. Prisoners’ counsel countered that the evidence showed only that they were in the yard, not that they committed any crime. The magistrate judge agreed and dismissed the criminal complaint in its entirety.

On appeal, the First District noted that the state did not challenge the dismissal of the torture charges, so it focused solely on the other charges. California law provides that all persons who encourage, incite, give support to or countenance a riot are principles in the riot. So the question before the Court was whether the defendants were participants in the riot.

Reviewing the testimony and video evidence presented at trial, the Court determined that it showed cause to believe the defendants had participated in the Pelican Bay riot because:

• Guards testified that they fired shots for effect only at prisoners who were assaulting other guards, and one of the defendants, Tagaban, was escorted to medical after the riot because he was found with a gunshot wound to his bicep;

• A guard also identified another defendant, Hernandez, as the prisoner who charged toward him and was twice ordered to the ground before the guard pulled his baton and subdued Hernandez to handcuff him; and

• The other two defendants, Abelino and Osman, were both photographed and identified as being in the yard.

The evidence also showed that “after the riot, Abelino had blood on his sock and ‘obvious blood splatter’ on his shorts, and Osman had a ‘slashing’ mark with a circular-shaped welt on his left arm consistent with being hit by a 40-millimeter exact impact round.” While this evidence may be insufficient to prove beyond a reasonable doubt that they participated in the riot, the standard of sufficient cause was met, the Court said.

Moreover the Court found that defendants’ actions were ‘natural and probable consequences’ of their participation in the riot. Under the ‘natural and probable consequences’ doctrine, a perpetrator of the target crime (rioting in this case) is similarly liable for any crime committed by another principal that is a natural and probable consequence of the target crime.

The Court then concluded that mayhem, assault by a state prisoner by means of force likely to produce great bodily harm, as well as battery were all natural consequences of the riot that occurred and thus appropriate charges.

Thus, the superior court was ordered to reinstate the corresponding counts against the four prisoner defendants and try the case. See: People v. Abelino, 62 Cal. App. 5th 563, 276 Cal. Rptr. 3d 728 (2021), as modified with no change in judgment in People v. Abelino, 2021 Cal. App. LEXIS 324 (Ct. App.). 

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Related legal cases

People v. Abelino

People v. Abelino