.Judge takes 10 days to review criminal case against ex-cops, perhaps struggling with decision

Two former San Rafael police officers accused of beating a local gardener will soon learn whether they’ll be standing trial on felony charges.

Last week, after closing arguments in the preliminary hearing—a proceeding to determine if there is enough evidence for a case to go to trial—Marin County Judge Beth Jordan stated that she would render her decision on Dec. 15.

Jordan is contemplating whether the former police officers, defendants Daisy Mazariegos and Brandon Nail, will answer to charges of assault under color of authority and making false statements in a crime report, both of which are felonies. 

The prosecution also alleges that the beating, caught on police body-worn cameras, caused “great bodily injury” to the victim, allowing for a sentencing enhancement if the case goes to trial and the defendants are found guilty of assault. Both Mazariegos and Nail have pleaded not guilty to all charges.

Typically, preliminary hearings result in defendants being bound over for trial. However, Jordan could reduce or dismiss the charges for one or both defendants.

Alison Berry Wilkinson, defense attorney for Mazariegos, believes that Jordan is struggling with the decisions. Although Wilkinson is a seasoned lawyer, she said it’s difficult to know which aspects of the hearing are giving the judge pause.

“It is unusual for a judge to take 10 days to consider her ruling before announcing it,” Wilkinson said. “The most common and expected thing, since we were at lunchtime, is that she’d take the hour and a half lunch break and issue her ruling. It’s the standard practice. I don’t have a crystal ball, but clearly, she has not decided as of yet that the district attorney met his burden.”  

Or it could be, as Jordan said, that she needs time to review the exhibits and precedent cases presented at the hearing. It seems sensible, given the hearing has started and stopped several times over a two-month period due to scheduling issues, the death of defense attorney Chris Shea and Mazariegos giving birth.

Prosecutor Geoff Iida insisted throughout closing arguments that he presented sufficient evidence to meet the probable cause benchmark Jordan will use to evaluate the case. Some legal pundits who watched the hearing from the courtroom gallery said that Iida made his case against Mazariegos and Nail, noting that probable cause has a much lower bar than the higher standard used in trial—proving guilt beyond a reasonable doubt.

The charges against Nail and Mazariegos resulted from an incident last year on Windward Way in San Rafael’s Canal area. A relatively new officer, Mazariegos had been riding solo for only four months when she saw Julio Jimenez Lopez and two friends on the street with open containers of beer. Mazariegos ordered the three men to sit on the curb. Nail soon arrived as backup.

Police videos show Mazariegos instructed Jimenez Lopez to retrieve his identification and he stood to do so. Nail yelled at him to “Sit the fuck down,” which Jimenez Lopez did temporarily. However, he stood again, attempting to explain why he was standing. The then-officers grabbed Jimenez Lopez, with Nail maneuvering his leg to trip the man. As all three tumbled to the ground, Jimenez Lopez briefly grabbed Nail’s vest. Nail then punched the man in the nose with a closed fist.

Jimenez Lopez was arrested and charged by the district attorney; however, after the DA reviewed videos from officers’ body-worn cameras, all charges were dropped. According to the prosecutor, the videos contradict the police reports written by Mazariegos and Nail. 

Mazariegos’ report lists Nail as the “victim,” due to his “injuries.” Jimenez Lopez was identified as the suspect, despite the report noting that he is 5 feet tall and 130 pounds, while Nail is 6 feet two inches and 250 pounds. Both officers stated in their reports that Jimenez Lopez tried to put Nail in a headlock. Nail wrote that Jimenez Lopez struck him in the head several times. None of these actions appear in the videos.

Jimenez Lopez testified in October that he suffered a broken nose, concussion and injuries to both shoulders, with the left shoulder requiring surgery.

During closing arguments, Iida stated that both defendants caused great bodily injury to Jimenez Lopez. Nail threw the punch, but when Jimenez Lopez was bloody and lying face down on the pavement, Mazariegos and Nail pulled the man’s arms behind his back and put their weight on his shoulders.

Iida also contended that Jimenez Lopez meant no harm when he grabbed Nail’s vest as the trio fell. Jimenez Lopez never aggressively held onto the officer’s vest, because he was holding his wallet in one hand and his identification in the other. Yet, Nail punched him.

Mazariegos and Nail acted without lawful necessity, Iida maintained. Jimenez Lopez remained polite and cooperative, was not a threat to the officers and did not resist efforts to handcuff him, according to the prosecutor.

“That is essentially the issue in this case—whether the officers were justified in using force against Julio on July 27, 2022,” Iida said.

Nail’s attorney, Julia Fox, relied heavily on the testimony of the defense’s use of force expert, Sean McCann, to establish that the amount of force used was reasonable. A former police officer who is currently an administration of justice teacher at Napa Valley College, McCann asserted that Jimenez Lopez actively resisted commands to sit down and moved his arms when Nail and Mazariegos tried to handcuff him.

McCann’s primary premise centered on the fact that Mazariegos and Nail didn’t know Jimenez Lopez and his two companions. Therefore, the officers needed to evaluate whether Jimenez Lopez’s alleged resistance posed a risk to their safety.

Another former law enforcement officer who attended much of the hearing and spoke on the condition of anonymity disagreed with McCann’s assessment.

“Cops rarely know who they are dealing with,” the former officer said. “That argument allows them to do whatever they want to anyone. I can’t support that.”

California Penal Code 835 states the decision “to use force shall be evaluated from the perspective of a reasonable officer in the same situation…” And that is the bone of contention. From use-of-force experts to members of the public, folks can’t agree on whether the officers behaved reasonably.

But McCann never wavered from his position, saying this incident evolved quickly, and the officers caught in the moment must determine the risk and course of action.

“If there’s a risk, then it’s a justifiable use of force,” McCann said.

In her closing argument, Fox said Nail threw the punch because Jimenez Lopez grabbed the officer’s vest, which contained “a hotbed of weapons,” including a taser and OC [pepper spray].

After the hearing, Fox remained adamant that there was not enough evidence to send the defendants to trial. When asked if Mazariegos and Nail could have prevented the incident by attempting to de-escalate the situation, perhaps by stepping back from the sidewalk to reduce any risk posed by Jimenez Lopez or the other two men, Fox didn’t give an inch.

“They did not have a duty to retreat,” Fox said. “Taking a step back is a retreat.”

Officers are required to use “deescalation techniques, crisis intervention tactics, and other alternatives to force when feasible,” according to California Penal Code 7286. The former officer who has been watching the hearing believes putting distance between the officers and Jimenez Lopez and his friends could have de-escalated the situation.

“I don’t think that’s retreating,” the former officer said. “I’ve asked people to step back.”

And so, the debate continues about what is reasonable and if Mazariegos’ and Nail’s actions were lawful. It’s not surprising that Judge Jordan needed 10 days to rule on whether the ex-cops will stand trial. We’ll all have the answer when court reconvenes on Friday, Dec. 15, at 1:30pm.