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Lawyers question charges in Arroyo Grande cross burning case

The lawyers of four defendants accused of a cross burning in Arroyo Grande last year argued Wednesday for the dismissal of a criminal charge they say essentially charges their clients a second time with the same crime.

But San Luis Obispo Superior Court Judge Jacquelyn Duffy ruled that the two charges in question — arson and cross burning with the purpose of terrorizing — applied to the case against the four defendants.

Duffy ruled that the alleged acts are distinct under the law, saying there’s sufficient evidence for all the charges.

The charges apply to each of the four because they allegedly conspired to commit the crime.Jason Kahn, Sara Matheny, Jeremiah Hernandez and William Soto are accused of burning an 11-foot-tall cross on the property next to a black teenager’s home in Arroyo Grande in March.

Defense lawyers argued that the prosecution was attempting to overcharge the case in a way that’s protected by law.

They believe the prosecution’s strategy is to increase the possibility of getting a conviction on one or both counts to allow for the highest penalty even if they are the same act.

They hoped Duffy would rule for the dismissal of the arson-related charge, which carries a maximum penalty of up to seven years in prison compared with a maximum incarceration of three years for the cross burning.

The defendants have pleaded not guilty to four charges — arson, cross burning, terrorism by arson, and conspiracy to commit a crime.

Trevor Creel, the lawyer representing Matheny, said the method of prosecution proves the two charges are the same.

He contended that Deputy District Attorney Dave Pomeroy would make one argument to prove both charges, laying out the same set of facts.

The additional defendants’ attorneys joined in the motion to dismiss the third count.

“As the Legislature has enacted a specific statute to criminalize and punish cross burning, the state is precluded from charging and punishing the defendant under more general statute (of terrorism by arson),” Creel said.

But Pomeroy countered that the charges are appropriate because arson and cross burning have distinct legal definitions. He believes the facts of the case apply to both.

Prosecutors often allege multiple crimes in relation to one event — though sentencing guidelines can limit how a defendant is sentenced if convicted of more than one charge relating to that event.

Creel also has appealed a previous decision by Duffy denying his motion to dismiss the cross burning allegation, saying no intent by the defendants to intimidate the girl has been shown.

Duffy previously ruled against the decision, saying that sufficient evidence was presented to allege the cross burning.

Pomeroy said obvious intent to intimidate has been shown; an 11-foot wooden cross was set on fire within feet of the black teen’s window at night while she was home watching television.

The case is tentatively set for trial in February.

All four defendants remain in County Jail in lieu of separate bail amounts.

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