On a warm August evening in 2021, 29-year-old Jesus Jimenez, holding a can of Bud Light, walked his bicycle along North Raitt Street in Santa Ana.
A couple of steps behind him was a man in a black T-shirt, carrying what appeared to be a metal pole. They appeared to know each other, according to footage from a home security camera.
Less than a minute later, the oft-homeless Jimenez was beaten by the man with the pole and left mortally wounded on the sidewalk, according to a mother and her adult son who witnessed the attack.
About two hours later and more than 1 1/2 miles away, a black-shirted Jonathan Menjivarlemus locked himself in a computer store after he was assaulted by a group of transients. Santa Ana police officers responded to the store and became convinced that Menjivarlemus — himself homeless — was the same man who attacked Jimenez.
Now Menjivarlemus, 28, is charged with murder in a case that Orange County Deputy Public Defender Nicole Parness says is so fraught with error that it should be thrown out. Parness is in the midst of a hearing to determine whether Superior Court Judge Sheila Hanson should dismiss the case because of several alleged mistakes by police.
“There’s so much error here, it would be a quick conversation to say what they did correctly,” Parness said in an interview. “It started off with an error, and the errors are piling on each other.”
Deputy District Attorney Anna McIntyre, in court documents, countered that Menjivarlemus’ right to due process was never violated during the investigation and there is no legal reason to dismiss the charges.
Eyewitness testimony crucial
The key evidence in the case is the eyewitness identification made by the mother and son. Both were separately driven to the Mundo Terra computer store, where Menjivarlemus was held handcuffed and flanked by officers in the parking lot.
The male eyewitness had earlier told officers the attacker had a military-style haircut and stood up to 5-foot-8. His mother said the assailant was under 5-foot-6. She said she had not seen his face, but that statement was not included in the police report, according to Parness. Both witnesses had not noticed any tattoos.
Mejivarlemus stands about 5 feet tall and has tattoos on the inside of his arms, which can still be seen when he is wearing a T-shirt, Parness said.
In her motion, Parness said the in-field identification was, by nature, “very suggestive” and officers failed to ask how far the witnesses were from the scene of the fatal beating — 75 feet — as well as how long they looked at the suspect.
“Defendant was presented … as a caged monster, sweaty, shirtless with a large visible tattoo on his chest and literally foaming at the mouth from thirst, in handcuffs and physically held by one uniformed officer on each side,” the motion said.
Officers: It wasn’t him
Before the eyewitness identification, several officers viewed home security video of the scene of the earlier assault on Raitt Street and remarked that Menjivarlemus was not the assailant in the video. They called Menjivarlemus a “bantamweight,” according to the dismissal motion.
McIntyre denied that the in-field identification was suggestive and wrote that it was conducted according to policy. She wrote that the in-field process was needed because of the violence of the fatal attack and the need to protect the community.
Some evidence lost, destroyed
Besides the “suggestive identification,” Parness says in her 279-page motion that two 911 calls about the ruckus at the computer store were destroyed. The calls had been requested after the department’s 180-day retention period. Also lost or destroyed by police was the store’s security footage — all believed by the defense to be potentially beneficial to its case.
Menjivarlemus had told officers at the scene that he was attacked by four men, who threatened to kill him. He insisted on making an official police report and refused to leave when he was initially told he could, court documents say.
Another apparent error noted by the defense was that officers disabled their body-worn cameras during key moments of the investigation and, in one instance, an officer was told by a supervisor to shut off his camera.
Additionally, at one point, a barefooted Menjivarlemus tells officers that he left his shoes at El Toro Market while running away from his attackers. Parness says that if Menjivarlemus had committed murder, there would have been blood on his shoes. But officers did not attempt to recover the shoes or view the market’s security footage — available from 63 cameras — to confirm Menjivarlemus’ alibi.
Police followed law
McIntyre said in her written response that police are not required to record every portion of the investigation. Moreover, police are not required to gather everything that could eventually prove useful to the defense, she wrote, referring to case law..
The prosecutor also noted that the missing video footage from the computer store and the 911 calls were not exculpatory and there were other ways to obtain the same information, such as interviewing officers.
Another point of contention, according to Parness, is the use of a police bloodhound named Rosie. Court documents say the animal led handlers from the scene of the Raitt Street homicide to the computer store where Menjivarlemus was being held.
However, Parness points out that the dog could have been tracking the officers who had been at both scenes. She added that Rosie did not alert on Menjivarlemus, who was sitting in the back seat of a patrol unit with the window open and the engine off. Parness’ motion also complains that officers turned off their body cameras during much of the walk with Rosie. There is no video to evaluate the tracking operation, says the dismissal motion.
McIntyre responded that the dog did, in fact, circle the police car where Menjivarlemus was sitting and showed interest in a spot on the sidewalk where the suspect had been previously seated.
Defense: Reject charges
In her motion, Parness asks the court to either drop the case or reject what she called the “suggestive and unreliable” eyewitness in-field identifications.
Parness, in an interview, said Menjivarlemus was guilty of only one thing — being “the unlucky male Hispanic in Santa Ana in a black T-shirt that day.”
The dismissal hearing is in recess for the holidays and will not resume until Jan. 3.
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