7.15.2008

TS - Judge dismisses three charges facing Gundersen

TS Judge dismisses three charges facing Gundersen

Superior Court Judge Marilyn Miles dismissed three of the 33 charges facing former Blue Lake Police Chief David Gundersen in a written ruling issued Monday.

Miles dismissed two of the 26 spousal rape charges as well as the charge of transporting a second victim for the purpose of rape. She left room for District Attorney Paul Gallegos to file a lesser charge, saying evidence presented during Gundersen's preliminary hearing supports a charge of forcible rape with a firearm enhancement.

After reading Miles' decision, Gallegos notified the court of his intent to add the forcible rape charge to his case against the former police chief.

Gundersen, who was arrested Feb. 8, will now face 31 charges, including 29 felonies, assuming Gallegos adds the forcible rape charge. He has pleaded not guilty and remains held in the Humboldt County jail on $1.25 million bail.

In a motion filed with the court June 27, Gundersen's attorney Russell Clanton sought the dismissal of all the charges facing his client, arguing there was not enough evidence presented during Gundersen's preliminary hearing to support them.

In her ruling, Miles agreed on two of the counts, finding the prosecution failed to present evidence to warrant holding Gundersen to stand trial on charges that he raped his wife with the use of an intoxicant in January 2008 and on Feb. 7, 2008. Miles found sufficient evidence to hold Gundersen to stand trial on the other 24 counts of spousal rape, one count for every month in 2006 and 2007.

After Gundersen's preliminary hearing, Judge John Feeney reduced the charge of kidnapping or transporting a second victim for the purpose of rape to forcible rape, but Gallegos said he respectfully disagreed with the court's decision and re-filed the count as initially charged. In her ruling Monday, Miles agreed with Feeney.

”The court finds that the evidence presented at the preliminary hearing does not show such a state of facts as would leave a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the defendant of an aggravated kidnapping,” Miles states in the ruling. “The court agrees with the magistrate that the evidence is sufficient to support a charge of forcible rape under Penal Code section 261(a)(2), and the firearm enhancement.”

If Gallegos files the new charge, Gundersen will face a total of 31 counts: 24 charges of spousal rape with the use of an intoxicant, forcible rape of a second victim, attempting to dissuade a witness, violating a court order, acting unlawfully with department records, possessing a controlled substance without a prescription and possessing a submachine gun and a pistol with a silencer attached.

Clanton said Monday he felt Miles' ruling was accurate regarding the actions she took, but that he obviously felt there were other actions she could have taken but did not. For his part, Gallegos said he agreed with the ruling.

Jury selection, which was slated to begin Monday, was also pushed back a day and is scheduled to begin this morning.

The case was moved to Judge Bruce Watson's courtroom because Miles' courtroom is currently occupied with an ongoing trial.

The court suggested having Judge Timothy Cissna hear the case, but Clanton issued a preemptory challenge on the grounds that Cissna is prejudiced against he or his client, leaving the case in Watson's hands.

That means Watson will also be left to rule on two motions filed by Clanton late last month seeking a change of venue and to have the spousal rape charges tried separately from the count concerning a second victim.

Generally, courts wait to hear change of venue motions until the jury selection process begins and potential jurors are questioned for possible bias. Gallegos said he expects jury selection to begin today with jurors filling out hardship forms and questionnaires regarding media coverage and other issues that may create bias toward the case.

Gallegos said he expects jury selection to take around one month.

Thadeus Greenson/The Times-Standard
Article Launched: 07/15/2008 01:27:41 AM PDT
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Same day ER Two charges against Gundersen dismissed

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