RANCHO CUCAMONGA, Calif. — An unexpected scheduling conflict today prevented the trial of adult performer Mercedes Carrera and Jason Whitney, for sexual abuse of a minor, or minors, and possession of drugs and firearms, from moving forward as planned.
The preliminary hearing that was supposed to happen today has now been moved to August 8.
This is the fourth delay in the course of four court dates over the past few months, attempting to set a date for the preliminary hearing to begin. All four hearings were “pre-prelim,” although on June 6 both the state and the defendants agreed to schedule today's intended preliminary hearing, a crucial step which will determine whether the case should move on to a jury trial.
As several sources predicted to XBIZ yesterday, Whitney’s attorney, Nicola Fitzgerald, asked for the postponement due to an unexpected scheduling conflict.
“I was ready to proceed with the preliminary hearing and I announced that to the court today,” Carrera’s public defender Joshua Castro told XBIZ. “Nicola Fitzgerald was representing a witness in a different case and she had been ordered to be in a different courtroom for a trial that’s happening today, where she’s representing a witness.”
Fitzgerald, who is a local private attorney in Rancho Cucamonga but also subs for public defenders whenever there is a conflict of interest, was called to the other trial to represent a witness who the judge considered might incriminate him or herself.
This morning, both PD Joshua Castro and the DA, Brieanne Durose, told Judge Gilbert G. Ochoa, a substitute judge acting for Judge Stephan G. Saleson, that they were ready for the preliminary hearing, but Fitzgerald brought up her scheduling conflict and a new date, August 8, was set.
Carrera and Whitney were on the premises. Having been informed in advance of Fitzgerald’s conflicts by their attorneys, they were not brought into the courtroom.
Sources close to the courthouse told XBIZ that the DA “had apparently met with Ms. Fitzgerald yesterday, and based on that conversation they agreed to postpone the preliminary hearing.”
Although DA Durose told Judge Ochoa that she was ready to present the state’s evidence today, it is unclear whether she really was, or might have asked for a further delay herself if Fitzgerald had not warned her of her scheduling conflict.
What Happens Next
Mercedes Carrera and Jason Whitney's nightmare began when they were dragged from their Rancho Cucamonga home on February 1. The couple has been held since their arrest at the West Valley Detention Center, in what Carrera described to XBIZ, in our exclusive March 28 jailhouse interview, as a hostile and dangerous environment.
There have been four pre-preliminary hearings, one every month since April. This latest delay reset the schedule and offered only 30 days from today to finally schedule the preliminary hearing.
If there are no further surprises, the parties will convene before Judge Saleson on August 8 for the preliminary hearing. At that point the DA will call the state’s witnesses.
Sources close to the prosecution told XBIZ that DA Durose is planning to call three police officers, Detectives Patton, Walker and Thies. This is known as a “hearsay hearing” or a “Prop 115 hearing,” where the alleged victim, in this case a minor who has been identified by Carrera as her own daughter from a previous relationship, is not called to testify.
Instead, for the preliminary hearing, the DA may bring in law enforcement who report their findings as “This is what I know, this is what I heard, this is what I saw, this is who I talked to.”
Carrera’s daughter is now in the sole custody of her father and Carrera has not seen her or known of her whereabouts since the arrest.
As XBIZ explained last month:
During preliminary hearings, as opposed to during the actual trial, the DA only has to establish “probable cause” and not guilt “beyond a reasonable doubt.” Probable cause is a much lower threshold — i.e., less evidence is needed to move forward to the full trial. [...]
Proposition 115, known as the “Crime Victims Justice Reform Act,” made a number of changes in 1990 to the California Constitution, including the possibility to admit hearsay evidence at preliminary hearings (as opposed to the actual trial).
This opened the door for DAs to call police officers to the stand to repeat things they had heard alleged witnesses and victims say, removing the possibility of meaningful cross-examination of alleged witnesses and victims by the defense.
The State’s complaint against Carrera and Whitney was filed on February 5 and they were arraigned a day later. It contains nine charges: eight related to sexual abuse, and one weapons and drug charge.
For each of the nine charges, the state has to present evidence that there is probable cause to bring them to trial. For each charge, the state has to present evidence of each “element” of the charge. The defense can challenge each piece of evidence for each element, and so, during the preliminary hearing the DA can choose to change the original charges. “They can add stuff and take stuff away,” is how our source put it.
It is fairly rare to get a whole case dismissed at preliminary hearing, so most likely, Carrera and Whitney will be arraigned for the new version of the charges that results from the preliminary hearing. This will happen ten days later, around August 18.
After the August 8 preliminary hearing, there is a possibility that Mercedes Carrera and/or Jason Whitney will file a motion to sever the trials, so each has an individual panel of jurors. But if that is what the defendants and their counsel decide, it will only be part of a delicate pre-trial strategy.
Carrera and Whitney are expected to plead not guilty, and from that moment when they are arraigned in the superior court, the DA and the defendant’s attorneys would have 60 days to begin the trial — around mid-October — a process that will begin with jury selection.
Jurors in Rancho Cucamonga are typically residents from that general area of San Bernardino County, including Fontana, Rialto, Rancho Cucamonga and Upland.
Crucial questions for the defense when choosing jurors in a conservative, religious, law-enforcement-worshipping area that has been described as “a Red State within California,” will be about their prejudices against sex work and sex workers, particularly adult entertainers.
As XBIZ reported last month, DA Durose is one of the few people who know exactly “what kind of evidence Detective Donald Patton found at the Carrera-Whitney home during the raid, which happened less than 24 hours after the police received a tip about the situation and conducted an interview with the minor in question.”
“Absolutely,” Detective Patton told XBIZ in May when asked if he still thought the evidence would support all nine charges. He repeated the assertion when we asked him if he still believed there were “more victims,” as the Rancho PD press release had conjectured when they released the couple’s mugshots back in February.
A source close to the prosecution also indicated that Carrera’s job as a sex worker and porn star was “definitely” a part of the state’s case against her.
Friends who have visited Carrera have mentioned that she is fully aware she could be in the West Valley Detention Center “for a while,” because the burden of proof is so low at a preliminary hearing. “You just have to convince the judge that something happened and that it should be presented to a jury,” a jailhouse visitor told XBIZ.
At the June hearing, Judge Saleson set Carrera and Whitney's bail at $2,000,000. As XBIZ reported, defendants typically can put down 8-10% of the bail amount and get the rest from a bail bondsman, if they have the collateral or co-signers for the remainder.
Sources familiar with Carrera and Whitney told XBIZ in June that the couple has liquidated their few assets and since they have not generated any income since January, are unable to pay a small retainer for a private attorney. A $2M bail, or even 10% thereof, is wildly beyond their current means during pre-trial incarceration.
According to PD Joshua Castro, who visits his client in jail regularly, Mercedes Carrera, in spite of today’s unexpected delay, very much “wants the case to move forward, and I look forward to defend her in court.”
For XBIZ’s ongoing coverage of the Mercedes Carrera case, click here.