A Fresno County judge will rule Feb. 24 whether to allow former Central High School basketball coach Loren LeBeau to withdraw his no contest plea that sent him to prison in connection with a drunken-driving crash that killed 7-year-old Donovan Maldonado in July 2012.
Judge Alvin Harrell III’s decision in Fresno County Superior Court could result in LeBeau, now 47, getting a new trial or finishing his 12-year prison term.
During a two-hour hearing Thursday, Fresno defense attorney Roger Nuttall asked Harrell to allow LeBeau to withdraw his no-contest plea to manslaughter charges because new evidence – a video that re-creates the deadly crash on Shepherd Avenue near Woodward Park in July 2012 – shows that the city of Fresno could be partly responsible for Donovan’s death and serious injuries to his father and his younger sister.
In essence, the video suggests that no driver – drunk or sober – would have seen Donovan crossing the street because of the faulty design of the crossing, Nuttall said.
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I deeply regret that the accident occurred and I remain very sorry for the tragic losses to the Maldonado family.
Prosecutor Robert Romanacce, however, says in court papers that the video is hearsay evidence and not an accurate depiction of what happened on the night Donovan was killed. In court Thursday, Romanacce also said he has seen the video, and in his opinion, any driver would have seen Donovan and his family in the crosswalk “unless you’re not looking.”
Police say Donovan was with his family when he was hit in a crosswalk on Shepherd Avenue between Millbrook and Perrin avenues during the early evening hours of July 25, 2012. The boy was fatally injured after he was dragged under LeBeau’s car for more than 800 feet, according to police estimates. His father, Jesse Maldonado, suffered serious injuries. Donovan’s sister, Bella, then 18 months, was near death but was revived at a hospital.
After the collision, police said, LeBeau left the scene, but returned a short time later. Toxicology results found his blood-alcohol level was 0.11, above the state’s 0.08 limit for intoxicated driving. Romanacce said Thursday that LeBeau’s blood-alcohol was likely 0.14 at the time of the collision.
If convicted of the charges, LeBeau faced nearly 20 years in prison.
As part of a plea agreement, he pleaded no contest in June 2013 to felony charges of gross vehicular manslaughter while intoxicated, hit-and-run causing death and injuries, and drunken driving. Two months later, Judge Gregory Fain sentenced LeBeau to 12 years in prison.
Police say Donovan was with his family when he was hit in a crosswalk on Shepherd Avenue between Millbrook and Perrin avenues during the early evening hours of July 25, 2012.
In court documents, Nuttall said LeBeau isn’t totally to blame: Donovan and his father rode bicycles that had reflectors, but no lights. Stickers on the bicycles also told the riders that they should not ride at night without lights. In addition, the crosswalk on Shepherd where the accident happened had a dangerous design that the city had known about since 2009, Nuttall told the judge Thursday.
A streetlight closest to the crosswalk also was not lit on the night of the collision, Nuttall said.
In the aftermath of the deadly crash, Fresno attorney Warren Paboojian sued the city and LeBeau on behalf of Donovan’s family for wrongful death and negligence. In court papers, Paboojian argued that the Shepherd Avenue crosswalk was dangerous because of its length, angle and location between two high-traffic intersections that are controlled by traffic lights.
In addition, Paboojian said the city knew about “the dangerous condition” long before Donovan was killed, because in October 2009 the city asked the U.S. Department of Transportation for grant money to build an underpass beneath Shepherd to replace the mid-block crossing.
In September 2014, the city paid the Maldonado family a $1.15 million settlement. The city also put a bike path tunnel under Shepherd so pedestrians and bicyclists would not have to cross the busy road where Donovan and his family were struck.
In addition to the city settlement, LeBeau, who is behind bars at the California Correctional Institution in Tehachapi, was found liable, and his insurance company paid the Maldonados $100,000.
Court documents say Paboojian hired experts to re-create the fatal collision, make a video and write a report, called a visibility study, for the civil case. In an interview in August, Paboojian said he did not give the video or the visibility study to LeBeau’s defense team.
Thursday’s hearing was ordered by the 5th District Court of Appeal, which ruled that Fain incorrectly denied LeBeau’s request for a continuance during his August 2013 sentencing hearing based on the newly discovered video.
At Thursday’s hearing, LeBeau’s previous defense lawyer, Jeff Hammerschmidt, was called to the witness stand by the prosecution.
Hammerschmidt testified that he didn’t know about Paboojian’s video when LeBeau entered his no contest plea. He said he learned about the video the day before LeBeau was sentenced.
At the sentencing hearing, Hammerschmidt asked for a continuance after telling the judge that he had not had a chance to view the video. Fain, however, denied Hammerschmidt’s request.
Hammerschmidt testified he has since seen the video. Because he no longer represents LeBeau, he declined to say whether the video would help LeBeau defend his actions. But he said he hired his own experts to re-enact the collision and he didn’t like the results.
This has been a terrible tragedy for everyone, including LeBeau’s family because he is serving a prison sentence for something he didn’t cause.
Fresno attorney Roger Nuttall
LeBeau did not attend Thursday’s hearing. Throughout his court proceedings, he has contended that he never saw Donovan and his family in the crosswalk, Nuttall said.
In a declaration from prison, on Jan. 19 he says he viewed the video for the first time. “It is my understanding that Paboojian discovered a fatal design flaw that created a dangerous condition,” LeBeau says in his declaration. He also says he would not have accepted the plea agreement if he had known of the video and the results of Paboojian’s visibility study.
“I deeply regret that the accident occurred and I remain very sorry for the tragic losses to the Maldonado family,” his declaration says.
But Romanacce told the judge that LeBeau has not been truthful. According to the prosecutor, LeBeau has said that he was never part of any plea negotiations and did what he was told by his lawyer. But Hammerschmidt testified Thursday “that’s not accurate.” Hammerschmidt said he kept LeBeau abreast about the evidence and talked to him about the consequences of taking a plea or rejecting it.
Nuttall, however, said LeBeau shouldn’t have been sentenced to 12 years because he was not speeding and he had the right of way. In addition, the crosswalk was poorly lit; the street light closest to the crosswalk was not working.
After the hearing, Nuttall said his goal was to get LeBeau acquitted or less prison time. “This has been a terrible tragedy for everyone, including LeBeau’s family because he is serving a prison sentence for something he didn’t cause.”