Two-time loser says latest mistake was prosecution's

It’s been a couple weeks now since Juan Castro saw his life pass before his eyes--or, to be more specific, 25 years to life. Castro figures he came within an eyelash of being sent back to

state prison for something he said he wasn’t involved in and for which the district attorney’s office eventually dropped charges. “I was pretty scared,” Castro said, “because I was facing 25

years to life and I thought I might never get out, that I’d never see daylight again.” Make no mistake, the 28-year-old Castro is not going to be running for mayor any time soon. He was a

longtime member of a Santa Ana gang and originally was sent to prison for a 1987 incident involving assault with a firearm. After serving that sentence, he was arrested a second time for

weapon possession. That added up to two strikes and left Castro in a rather precarious position last April when a witness to a street assault in Fullerton, after looking at police mug shots

of gang members, identified Castro as the driver of a car carrying possible suspects. Castro, who had been on parole for four months at the time, was arrested in July and jailed on attempted

murder charges. He insists he had dropped his gang affiliation and, according to his attorney, had complied with all the terms of his parole. At Castro’s preliminary hearing, the

prosecution didn’t call the eyewitness. Instead, the only witness was the police officer investigating the assault, who testified that the man had picked Castro from a photo lineup. Castro’s

attorney, Roland Rubalcava, subpoenaed the eyewitness. In court, the judge asked the witness if he saw the driver in the courtroom, and the witness testified he did not. It was the first

time he had seen Castro in person. He testified that Castro looked older than the people he saw in the car. Still, Castro was bound over for trial, which was scheduled for last November.

Deputy Dist. Atty. Mark Kelly was assigned to the case. But just before Thanksgiving, Kelly concluded that he didn’t have enough evidence and asked the judge to dismiss charges. Rubalcava

told Castro, who had been jailed since July, that he’d be home for Thanksgiving. “Little did I know,” Rubalcava says. Instead, Castro was transferred that night to state prison in Chino for

a review of his parole status. Rubalcava argued that the dropping of charges should have rendered the parole hearing moot, but parole officials said otherwise, citing different standards for

proving parole violations than for proving criminal violations. Six weeks later, because of the backlog of other cases, Castro got his hearing. In the meantime, he remained in custody.

After a short hearing, Castro was cleared of any parole violations and was released Jan. 4. I asked Castro if he was mad at anyone over his six-month incarceration. “I was more scared than

angry,” he said, “because I was facing something I didn’t do.” Prosecuting gang-related cases can be difficult. Witnesses have a way of developing faulty memories when gang members find out

they’re scheduled to testify. Discretion becomes the better part of testimony. So, I found myself wondering whether Castro got lucky because a witness got pressured. Not so, Castro said. “I

wasn’t involved at all. I don’t know how he [the witness] could get scared, because he said the guys were young Hispanic-looking, and I’m 28 years old. I was never there. I’m through with

that. To me, it [gang involvement] doesn’t exist no more. I’ve been through it already, and I’ve got nothing to do with it. I wasn’t hanging around with them.” Castro noted that the witness

never saw him in person until their courtroom meeting. He said the mug photo of him was several years old, which may have accounted for the witness’ identification. “I was out there trying

to do good, and all of a sudden this pops up,” Castro said. “I think they go by your record. Just because your record is half-bad, they probably still think you’re doing it. If he had seen

me in a straight lineup, there would have been no doubts right there.” Kelly finds no fault with the process that led to Castro’s arrest and says only that charges were dropped because he

couldn’t meet the standard needed to bring a case to trial. “Would the jury convict, now that we didn’t have an ID?” he said this week. “We felt we would be wasting the jury’s time and that

we couldn’t prove it beyond a reasonable doubt.” Rubalcava lauds Kelly for dropping the charges but knocks the parole board for keeping Castro behind bars for six weeks after the case was

dropped. So goes the law. Castro was either terribly wronged or got awfully lucky. Either way, pretty high stakes, I suggested to Kelly. “The stakes are high,” he said. “That’s why

investigations take a long time and we try to do the right thing.” Dana Parsons’ columns appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at the Times Orange

County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or calling (714) 966-7821. MORE TO READ