MARTINEZ -- Six defendants on Tuesday were ordered to stand trial in the Richmond High School gang rape case, while all charges were dismissed against the seventh and youngest defendant.
Judge Gregory Caskey said he did not find sufficient evidence of criminal behavior by Cody Ray Smith, 16, of San Pablo. His family broke down in tears when they heard he would be released from juvenile hall Tuesday night.
"I'm sorry for what happened to (the victim) -- I really am -- but I knew Cody was innocent," said Smith's cousin, Desirae Smith.
Over the course of a 20-day preliminary hearing, prosecutor Dara Cashman laid out evidence that numerous men and teen boys attacked the 16-year-old victim as spectators watched. The assault occurred in a dark courtyard on the Richmond High School campus after the girl left a homecoming dance around 9:30 p.m. Oct. 24, 2009, and became heavily intoxicated.
When police found her just before midnight, she was unconscious and partially clothed under a picnic table. She had a near-fatal blood alcohol level of .355, and was suffering from a concussion, hypothermia, brain and facial swelling, and head-to-toe scrapes and bruises.
It was after the girl first vomited and collapsed from drinking that a "mob mentality" set in and the group began to sexually humiliate and abuse her, Cashman said.
"She was sexually assaulted and she was beaten and she was treated as if she wasn't even human," Cashman said.
Caskey dismissed two rape charges against Elvis Torrentes, 23, of Richmond, and ordered him to trial for sexual penetration of an intoxicated person. Torrentes is now facing up to eight years in prison, rather than the 26 years he was facing before the preliminary hearing.
All the other defendants are still facing life in prison.
Ari Morales, 17, of San Pablo, and Marcelles Peter, 18, of Pinole, were each held over for rape by foreign object in concert and a charge enhancement. The judge dismissed a second-degree robbery charge against Morales.
Jose Montano, 19, of Richmond, was held over for forcible rape in concert and a charge enhancement. But the judge dismissed a charge that he used a skateboard to commit rape and instead added it to the list of charges against 20-year-old Richmond resident Manuel Ortega.
Ortega, the most heavily charged defendant, was also ordered to trial for rape in concert, second-degree robbery, assault with a deadly weapon, and various charge enhancements. Caskey also added a second new charge for Ortega: forcible oral copulation in concert.
John Crane, 44, of Richmond, was held over for forcible rape in concert and a charge enhancement. His attorney, Dustin Gordon, argued that no one described an older black man there that night and since Crane's semen was "everywhere," perhaps the victim had consensual sex with Crane before the dance, despite her statement to police that she had never seen him before. Caskey said the evidence indicates Crane was at the crime scene.
Caskey dismissed all charges against Smith, including rape by foreign object in concert and charge enhancements that called for life in prison.
Cashman said she was not surprised given that Caskey previously ruled Smith's police interview inadmissible based on a Miranda rights violation. Smith, who police said was drunk and high on Ecstasy that night, made a "very ambiguous" admission of sexual contact during the interview, then later took it back, Caskey said.
Smith had been front and center in the high-profile case early on because he had been a friend and classmate of the victim and was the person who invited her to drink in the courtyard. His cousin Desirae Smith said he was a gullible kid who enjoyed SpongeBob SquarePants and Pokemon before his arrest. After more than a year of incarceration, his personality has hardened, his voice has changed and he has a mustache.
She and Smith's father, Mark Smith, said he remains in trouble with them for his involvement that night, but on Tuesday, they planned to take him out to dinner.
"They didn't know his character: He was a good kid," Mark Smith said of the prosecutors. "They slandered his name, they ruined his reputation."
Cashman, the head sex crimes prosecutor who is retiring from the district attorney's office later this month, said it was one of the most challenging cases in her 26-year career because there were so many unreliable witnesses. She expects as many as five separate trials from the case.
"I never had a case where so many people knew so much, and yet knew so little at the same time," Cashman said.
Contact Malaika Fraley at 925-234-1684.