Judge allows criminal charges in Bay Area shooting involving ex-UFC star to go to trial

SAN JOSE — Former UFC champion Cain Velasquez will have to continue fighting in court after a judge allowed criminal charges — alleging that Velasquez tried to kill a South Bay man accused of molesting his child — to proceed to trial.

The ruling Tuesday by Santa Clara County Superior Court Judge Arthur Bocanegra concluded a two-day preliminary hearing where the judge heard select witness testimony to determine whether there was enough evidence to bring the case to a jury. Absent any plea agreement reached in the meantime, a trial would likely start sometime next year — with a life prison sentence on the line for Velasquez, the mixed-martial arts fighter who fought out of San Jose during his title-holding heyday.

Velasquez, 40, was charged in March with one count of attempted murder, three counts each of assault with a firearm and assault with a deadly weapon, and three gun-crime charges. He pleaded not guilty to the felony charges and has been represented by a defense team led by Los Angeles-based attorney Mark Geragos.

Until the case is adjudicated, Velasquez will remain in custody at the Main Jail in San Jose where he has been held without bail for eight months. He challenged the local court’s denial of bail with a petition to the Sixth District Court of Appeal, but the appellate court rejected his petition last month.

Geragos asked Bocanegra to re-evaluate Velasquez’s fitness for bail after Tuesday’s ruling; the judge said he would give it formal consideration later in the afternoon.

Velasquez is accused of shooting at 44-year-old Harry Goularte Jr. as he traveled with his mother Patricia Goularte and his stepfather Paul Bender, who were reportedly driving him from Morgan Hill to San Jose on Feb. 28 to get fitted for an ankle monitor at a county office.

Three days earlier, Goularte Jr. was arraigned on a charge of a lewd and lascivious act with a child, based on claims that he abused Velasquez’s child at a San Martin home daycare run by his mother. Goularte Jr. was granted supervised release — which included the use of the ankle monitor — over the objection of prosecutors, a point that Velasquez’s defense team repeatedly seized on in previous bail hearings.

Geragos did not present any witnesses Tuesday but sought to get the judge to dismiss the attempted murder count and revisit bail for Velasquez. He argued to Bocanegra that his client’s alleged acts, including ramming the victims’ vehicle before shooting them, and his eventual surrender were signs of impulse rather than premeditation.

“If there was premeditation, why was there ramming of the car? It shows this was impulsive,” Geragos said. “This gives you a heat of passion that would negate, by definition, malice.”

He also contended that video recorded in the Morgan Hill neighborhood where Goularte Jr.’s parents picked him up — which the prosecution said showed Velasquez following and “stalking” them — does not align with a premeditated act. Geragos added that there was no way Velasquez could have known the parents were going to see their son, and said a premeditation theory is weakened by the fact Velasquez took no action at that point.

“Why would he wait for him (Goularte Jr.) to get into the car? It makes no sense,” Geragos said. “It’s obvious this was was a chance meeting. It’s obvious he had no intent to kill.”

Deputy District Attorney Aaron French pushed back at the defense characterization, emphasizing that the alleged attack did not occur until three days after Goularte Jr. made his court appearance and was granted release. He also argued that Velasquez’s cooperation with police officers who arrested him meant his only target of violence was Goularte Jr.

“The only thing that shows is his beef was with the people in the car,” French said. “That does not change what he set out to do that day. … This was not heat of passion. This was revenge.”

“There is more than overwhelming evidence for a probable cause determination” to hold the case over for trial, French said.

At this week’s preliminary hearing, French called up five witnesses, all of whom were police officers from the Morgan Hill and San Jose police departments who responded in some capacity to the Feb. 28 shooting report that ended with Velasquez’s arrest on a street connecting the two cities. Authorities have alleged in police reports and court documents that Velasquez shot at Goularte Jr. and his family first at a busy intersection in Morgan Hill — but did not hit anyone — before shooting at them again at Bailey Avenue and Monterey Highway in South San Jose, wounding Bender.

Morgan Hill Sgt. Sergio Pires testified Monday that he responded to a call reporting a frantic car chase heading north toward San Jose on Monterey Highway that afternoon, but instead got a first-hand look of the two pickup trucks — driven by Bender and Velasquez — speeding against oncoming traffic in his path. Pires said once Velasquez passed his patrol vehicle, Velasquez pulled over and surrendered. Officer Nathaniel Rodriguez testified that he backed up Pires and detained Velasquez, who he described as cooperative and promptly disclosed that he had a handgun in his truck.

Rodriguez said Velasquez, without any prompting, began telling him about how his 4-year-old son had been sexually abused at a San Martin daycare by the owner’s son.

Tuesday, Geragos underscored Velasquez’s surrender to police, as as evidence he can be safely released.

“He’s not a threat to anybody at this point. What he is,” Geragos said, “is support for a 4-year-old boy.”

Cpl. Todd Davis described being told by a witness reporting that the pickup trucks were zooming through mid-day traffic at Butterfield Boulevard and Cochrane Road in Morgan Hill, and that the truck since identified as belonging to Velasquez pulled up alongside Bender’s truck. That was followed by the sight of a man pointing a handgun at Bender’s truck and firing one round, according to Davis’ recall of the witness account.

San Jose Police Officer Yanick Mendez testified to overseeing bullet casing recovery at the Bailey Avenue shooting sight, which led to the revelation in court that a police report erroneously documented that a bullet casing, rather than a bullet, was found lodged in Bender’s truck. That prompted Geragos to refer to a “magic shell casing” in criticizing the police investigation.

Another San Jose officer, Scott McNulty, recounted in court his hospital interview with Bender, in which the wounded man reportedly described being chased at high speeds. Bender told McNulty that after he was shot at Bailey Avenue, he heard more shots as the pursuit headed back toward Morgan Hill and Sgt. Pires.

Geragos raised questions about the officers’ expertise and knowledge of the shooting and allegations against his client, highlighting how they each handled disparate parts of the case, and noting in several instances how they were being asked to give assessments about the case despite their limited viewpoints. He voiced skepticism about photos of bullet strikes and presumed bullet holes in both pickup trucks, calling to the judge’s attention how the testimony lacked any ballistics analysis to affirm how the shooting unfolded.

Geragos also alluded to Velasquez’s state of mind throughout the hearing, making sure that Bocanegra heard multiple times about the allegations against Goularte Jr. and their effect on his client.

Velasquez’s family and supporters have routinely shown up, often en masse, to his court dates. Geragos has steadily reiterated the frustration shared by Velasquez’s family and supporters, describing as “hypocrisy” how Goularte Jr. is walking free while Velasquez remains in jail and arguing that his client was responding to the criminal-justice system failing his family. But Patricia Goularte and Paul Bender have claimed in court that the presence of these supporters at hearings for Goularte Jr.’s case, as well as fervent public and fan support for Velasquez, have forced them into hiding.