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MARTINEZ -- A Contra Costa County judge will decide Tuesday which of the seven defendants in the Richmond High gang rape case will go to trial and on what charges.

In anticipation of attorneys making their final arguments today, Judge Gregory Caskey said Monday that he has two concerns: whether there is sufficient evidence to bring 16-year-old Cody Ray Smith, of San Pablo, to trial, and the state of evidence of Elvis Torrentes, 23, of Richmond.

Caskey indicated that 20-year-old Richmond resident Manuel Ortega, the purported ringleader of the assault, would likely face trial.

Caskey ruled Monday that Smith's police interview is inadmissible as evidence because Smith's Miranda rights were violated when he was questioned two days after police found an unconscious and partially clothed 16-year-old girl under a campus picnic table Oct. 24, 2009.

Caskey agreed with the contention of Smith's attorney, David Headley, that Sgt. Lori Curran ignored the then-15-year-old Smith when he first said he wished to remain silent so that she could further the high-profile criminal investigation which, at that point, had few leads.

The cherub-faced Smith appeared to be praying as attorneys argued the issue, then looked relieved once Caskey announced his decision.


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John Crane, 44, of Richmond; Ari Abdallah Morales, 17, of San Pablo; Marcelles James Peter, 18, of Pinole; and Jose Carlos Montano, 19, of Richmond, are also charged in the attack during which, police said, the girl was raped, beaten and robbed over two hours while spectators watched. Torrentes is facing 26 years in prison on the current charges, while all of the other defendants are facing life in prison.

Caskey said he watched video of Smith's "interrogation" and the teen made one "very ambiguous admission that he may have had sexual contact" with the victim, then later said he did not.

Officers have testified over the 19-day preliminary hearing that Smith was drunk and high on ecstasy during the assault, that he stole the alcohol that the victim consumed, and that the victim's stolen cell phone was found at Smith's house. Only one of more than a dozen witnesses interviewed by police claimed to have seen Smith inappropriately touch the girl. Like all the minor defendants, Smith was charged as an adult.

"I expect any criminal behavior will go back to juvenile court," Headley said.

Testimony about Torrents' possible criminal behavior has been contradictory and confusing.

Torrentes told police that he sexually touched the girl, but he claimed that it was a consensual act that occurred before she passed out and the assault began.