Detective: Several Cal Poly players wanted to back out of alleged frat house robbery

Correction: An earlier version of this story incorrectly said that, according to San Luis Obispo Police Department detective Amy Chastain, an iPad and an iPhone stolen from a fraternity member were found in a car one of the suspects was driving. Only the iPad was stolen, according to Chastain's testimony; all the phones found in the car belonged to the suspects.

Several of the Cal Poly football players accused of conspiring to rob fraternity members of drugs and cash told police they tried to back out of the attempt and one began crying when he learned a gun had been involved, the prosecution’s main investigator testified Tuesday.

Cortland Fort, 20, of Fontana; Dominique Love, 19, of Poway; Jake Brito, 18, of Cypress; and Kristaan Ivory, 20, of Los Angeles were back in San Luis Obispo Superior Court for a second day of testimony in a preliminary hearing for a judge to determine if there is enough evidence to proceed to trial.

They are facing multiple felony charges including conspiracy in an alleged holdup at Delta Sigma Phi on Aug. 10.

A fifth player, Cameron Akins, 19, is accused of brandishing the unloaded pistol and fighting with police officers who responded to the fraternity apartment complex.

Akins is awaiting a second arraignment and was not in court Tuesday.

On Tuesday, attorneys for the four defendants questioned the lead investigators, San Luis Obispo Police Department detectives Eric Vitale and Amy Chastain, about their interviews with the defendants and witnesses following the incident.

Early on, the attorneys attempted to persuade Superior Court Judge Donald Umhofer to allow questioning regarding Gear McMillan, a former Delta Sigma Phi chapter president who was arrested and charged with possessing marijuana for sale after officers searched the fraternity house more than three weeks after the incident.

McMillan, 22, has pleaded not guilty. The defense attorneys have referenced his arrest as one of numerous instances where residents of the house were not truthful with officers.

Deputy District Attorney Eric Dobroth acknowledged that McMillan’s arrest has “marginal” relevance to the case and Umhofer said he would allow limited questions about McMillan.

Chastain said officers discovered Love, Ivory and Brito’s wallets and cell phones in the car Fort was driving when he was pulled over following the alleged robbery. The three were not with him in the car.

Chastain also said officers found in the car an iPad belonging to a frat member that had been stolen days before before the robbery, although it was not revealed where the iPad was taken from or by whom.

She further testified that she detained Ivory, Brito and Love later that day at the Cal Poly Athletics Department and took them, handcuffed in a transport van, to the police station for questioning.

Chastain said Ivory initially asked for an attorney, but then told her the group had been partying that night and one of the players — Ivory did not say whom — suggested taking money from one of the fraternity members the player had previously bought marijuana from.

“He indicated they were going to commit a robbery,” Chastain said of Ivory. “His response was, ‘It all just kind of happened.’”

However, Chastain said Ivory also told her that he and Brito tried to persuade the group not to go through with the deed after the group pulled up to the home; both walked away, soon getting a ride to a friend’s house.

The attorneys initially objected to Chastain recounting her interview with Ivory, alleging that the officer coerced him into talking. Ivory’s attorney, Jacob Glucksman, argued that Chastain told Ivory he was being detained but not arrested at the time of the interview.

However, when he asked for an attorney, Glucksman said Chastain told Ivory that he would have to be arrested and booked in County Jail if he wanted an attorney provided.

“The threat of arrest arises only in the context of asking for an attorney,” Glucksman said. “His waiving (of Miranda rights) was not voluntary.”

Other defense attorneys agreed, as Ivory’s interview affects their clients’ cases.

“He’s locked in this room with two officers, then he begins to express some reluctance, and only then does the threat of arrest arrive. It’s a common practice (for police),” said attorney Chris Casciola, who represents Fort.

“Then lo and behold, Mr. Ivory decides he doesn’t want a lawyer. If that’s not coercion I don’t know what is.”

Umhofer disagreed and allowed Chastain’s testimony to continue.

In recounting her interviews with Love and Brito, Chastain said Love told her he knew Akins had a gun that night, but never saw it. Brito was “genuinely shocked” when he learned a gun was involved, she said.

“When I told him there was a real gun, he said I was a liar and began to shake and cry,” Chastain said.

Testimony will continue Wednesday afternoon in San Luis Obispo Superior Court.

This story was originally published January 13, 2015 at 7:35 PM with the headline "Detective: Several Cal Poly players wanted to back out of alleged frat house robbery."