Former Central High School basketball coach Loren LeBeau can’t 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, a judge ruled Friday in Fresno County Superior Court.
Judge Alvin Harrell III’s decision means LeBeau, 47, can’t get a new trial on felony manslaughter charges and will have to finish his 12-year prison sentence.
Harrell made his decision after reviewing stacks of court records and after listening to two hours of testimony on Feb. 9 from LeBeau’s former lawyer, Jeff Hammerschmidt, and arguments from prosecutor Robert Romanacce and Lebeau’s current lawyer, Roger Nuttall.
At the Feb. 9 hearing Nuttall told the judge that 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.
Romanacce, however, said the video is hearsay evidence and not an accurate depiction of what happened the night Donovan was killed. 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.”
In his ruling Friday, Harrell said he viewed the accident reconstruction video and, although it is not crystal clear, he concluded that a typical driver could have seen people in the crosswalk.
Police say Donovan was with his family when he was hit in the 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 percent, above the state’s 0.08 limit for intoxicated driving. Romanacce said LeBeau’s blood-alcohol was likely 0.14 at the time of the collision.
As part of a plea agreement, LeBeau 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.
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 city knew the Shepherd Avenue crosswalk was dangerous 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 midblock crossing.
In preparing for a civil trial, Paboojian hired experts to re-create the collision with a video. To avoid a trial, the city paid the Maldonado family a $1.15 million settlement in September 2014. (The crosswalk no longer exists; the city built an underpass beneath Shepherd Avenue as part of the Sugar Pine Trail.)
LeBeau was given the opportunity to file a motion to withdraw his plea last April, when the 5th District Court of Appeal in Fresno ruled that Judge Fain incorrectly denied Hammerschmidt’s request to continue the August 2013 sentencing hearing. At the hearing, Hammerschmidt said he hadn’t seen Paboojian’s video when LeBeau entered his no-contest plea and had learned of it the day before LeBeau was sentenced. .
LeBeau did not attend Friday’s hearing. He is behind bars at Tehachapi State Prison.
In his ruling, Harrell said he also was not convinced by a defense expert who said it would be difficult to see pedestrians or bicyclists in the crosswalk. Nuttall had argued that LeBeau wasn’t totally to blame: Donovan and his father rode bicycles that had reflectors, but no lights.
In addition, the judge found LeBeau untruthful in his declaration. LeBeau had said he was never part of any plea negotiations and did what he was told by his lawyer, Hammerschmidt.
Harrell, however, pointed out that Hammerschmidt testified on Feb. 9 that he kept LeBeau abreast about the evidence, including the results of his own reconstruction study.
Hammerschmidt said he didn’t like the results of his study, so he told LeBeau the consequences of taking a plea or rejecting it. Hammerschmidt also testified that he sought and received a second opinion from former Fresno defense lawyer Michael Idiart, who is now a Superior Court judge. Idiart came to the same conclusion, Hammerschmidt testified.