Gail Fry
Contributor
Black Lives Matter Inland Empire Chapter Member Donavan Caver suddenly found his case transferred on July 27, from the San Bernardino Justice Center to the Joshua Tree Courthouse where he faced an all-white jury, who at the end of his trial, found him guilty of vandalism for spraying in chalk the letters “FTP” on a planter wall to protest San Bernardino County Deputies arresting his fellow protesters on July 31, 2020.
Caver explained it was claimed a large number of criminal murder cases left no vacant courtrooms in the City of San Bernardino and surrounding communities.
At the Joshua Tree Courthouse, Superior Court Judge Rodney Cortez expressed surprise at the assignment because he was scheduled for vacation. A new judge was quickly assigned as Judge Kory Matthewson took the bench to preside over Caver’s jury trial.
The San Bernardino American News observed closing arguments of a criminal trial where the jury was asked whether or not Caver was guilty of vandalism, where the elements of the crime included whether Caver’s actions were malicious, whether Caver damaged public property with graffiti, and whether following the act, committed in front of deputies, Caver fled implying he knew his act was a crime.
San Bernardino County Deputy District Attorney (DDA) Alfredo Tigerino argued that Caver was angered watching his friends being arrested, wanted to injury or annoy, was malicious when he shook the can of spray chalk and sprayed the letters “ftp” onto the planter wall on the courthouse grounds, after which Tigerino alleged Caver fled.
Even though the planter wall could be easily cleaned, DDA Tigerino argued, it did not erase the crime, because the crime of vandalism does not differentiate whether the damage was temporary or permanent. DDA Tigerino asked the jury to find Caver guilty based on the facts and applying the law.
Attorney Peter Schlueter, representing Caver, pointed to his client’s testimony that he chose washable chalk to write three letters on a planter that was on courthouse grounds, explaining the way the district attorney was looking at this, a 12-year-old drawing a flower in chalk on the sidewalk could be arrested for vandalism.
Schlueter reasoned because the chalk was used on the court’s grounds the prosecutor was motivated to pursue these criminal charges that if it was on the sidewalk somewhere else, also public property, charges would not have been pursued.
Schlueter described Caver affixing the chalk to the planter wall right in front of a uniformed deputy sitting in his patrol car, with at least 30 deputies close by, arguing Caver’s choice to use chalk showed he was not being malicious, instead raising his voice to object, and did not flee but walked north up Arrowhead followed by a sheriff helicopter to Schlueter’s law office.
Superior Court Judge Kory Matthewson briefed the jury their task was to decide whether Caver’s intent was malicious, whether Caver vandalized public property, it was irrelevant whether the damage was permanent or temporary, and whether Caver escaped the scene because he knew his act was a crime.
While waiting for the jury to deliberate, Schlueter told The San Bernardino American News that the entire case hinges on malicious intent with the district attorney defining malicious intent as only the intent to write, while Schlueter argued malicious intent was more than that, malicious intent means malicious intent.
Schlueter objected that based on the DDA’s definition of malicious intent, the court limited questioning and testimony about Caver’s intent preventing him from presenting a defense, which Schlueter explained would include considering his motivation to protest, protected by the First Amendment of the Constitution.
Schlueter objected to the circumstance where the jury was considering an important element of the crime of vandalism, intent, with two different definitions of what intent means.
With Schlueter’s definition, someone applying chalk on a sidewalk would not be guilty of vandalism unless the person was being malicious, whereas according to the DDA anyone applying chalk on a sidewalk is guilty of vandalism.
The jury reached its verdict quickly, Judge Matthewson verified with the jury foreman that the all-white jury had reached a verdict, the judge asked the verdict be read by the jury foreman, wherein the guilty verdict determined by the jury was read to the court.
After the verdict, San Bernardino Superior Court Judge Kory Matthewson imposed Caver’s sentence as 30-days of community service, with 8 of those hours used to remove graffiti, a fine of $265.20, and 1-year of informal probation.
The San Bernardino American News asked the San Bernardino County District Attorney about the composition of the jury pool in Joshua Tree, compared to the City of San Bernardino. San Bernardino County District Attorney Public Affairs Officer Jacquelyn Rodiguez pointed out that neither the defendant nor his attorney objected to the jury composition, therefore, accepted the jury panel.
Rodriguez explained matters involving juries are handled by the Commissioner of San Bernardino County and questions should be directed to that office.
Rodriguez explained that in Caver’s case, the trial had to start by July 27, due to Caver exercising his right to a speedy trial, which requires the trial to begin within 45 days, after Caver withdrew his general time waiver, and therefore, the trial was subject to assignment to any available courtroom throughout the county.
Having no criminal record, Caver questioned why the district attorney’s office did not offer a plea agreement until just before trial and only after being prompted by a judge. Rodriguez responded that plea negotiations occur before the start of trial like in all other criminal prosecutions.
As to questions about the use of time and resources of the district attorney’s office for a misdemeanor vandalism case, Rodriguez explained while some cases are more complicated compared to others, our community expects and deserves sincere consideration of every case by the Office of the District Attorney.
Rodriguez closed declaring that in San Bernardino County, the rule of law as well as the defendants’ right to a speedy and public jury trial with a guaranteed right to an attorney under the Sixth Amendment was invaluable.
As documented in video tape obtained by The San Bernardino American News, on July 31, 2020, it began with Black Lives Matter (BLM) Inland Empire (IE) Chapter Protest Leader Avery Garey, Jr. leading a peaceful protest on court grounds at the San Bernardino Justice Center.
A short time passes, San Bernardino County sheriff deputies are arriving on the scene, when a sheriff deputy approaches Garey, Jr. and attempts to shove documents into his hand, explaining this court order prohibits protesting on court grounds. Immediately thereafter, Garey, Jr. is arrested.
A large number of sheriff deputies have now gathered to confront the protesters, the sides face off, some protesters sit on the ground, the deputies are pushing them to the sidewalk, numerous protesters are arrested, as a sheriff helicopter swoops in to hover low over the protest.
Five BLM IE Chapter Members and seven other protesters protesting the arrest, and prosecution of Lawrence Bender, were arrested on the San Bernardino Superior Court grounds in the City of San Bernardino.
According to Caver, the remaining protesters arrested at the protest, were not criminally charged for their actions that day, only BLM IE Chapter Members immediately faced criminal charges.
According to court records, BLM IE Chapter Members Donavan Caver, Broderick Dunlap, Yoselin Saucedo, Brian Licea, and Avery Garey, Jr. were criminally charged the day of the protest, July 31, 2020. A sixth protester, Jaydee Lopez, was charged August 28, 2020.
Caver was charged with vandalism, Dunlap, Saucedo, and Licea were charged with trespassing, obstructing/resisting a public officer, trespassing/obstructing the business of a public agency, and picketing the courthouse to impede justice, while Garey, Jr. was charged with trespassing, obstructing/resisting a public officer, and trespassing/obstructing the business of a public agency, all misdemeanors.
On August 28, 2020, Jaydee Lopez was charged with resisting arrest, battery on a peace officer and picketing the courthouse to impede justice stemming from the July 31, 2020, protest, all misdemeanors.
As shown on the video of the July 31, protest, a sheriff deputy attempts to shove a document into the hand of the protest leader, Avery Garey, Jr. followed by shouting that it was a court order prohibiting protesting on court grounds issued by the San Bernardino Superior Court.
Attorney Peter Schlueter questioned why no one was arrested for violation of the court order, leading Schlueter to question its validity.
Research by The San Bernardino American News found California Rules of Court, Rule 10.603, which details the presiding judge’s authority.
After reviewing the court’s order and rule of court, First Amendment Coalition Legal Director David Loy said he wasn’t sure if the rule would rule out a presiding judge from signing an order prohibiting certain conduct by the public in the courthouse or on or near the courthouse grounds.
San Bernardino Superior Court records show before their arrests Caver had one traffic tickets, Dunlap two traffic tickets, Licea had two traffic tickets, and one misdemeanor nine years ago, and Garey, Jr., Saucedo, and Lopez had no criminal records.
On November 2, 2020, Lopez, represented by Attorney Schlueter, faced a jury trial, and was found not guilty.
Dunlap and Saucedo, both represented by Attorney Peter Schlueter, and Licea, represented by Attorney Karin Aida Khachatorian, face a trial recall hearing on October 11, in Department 7 at the San Bernardino Justice Center.
A member of the conflict panel of attorneys is representing Garey, Jr. The conflict panel is a panel of attorneys created by the County of San Bernardino to represent those defendants who have a conflict with the public defender’s office.
According to court records, the court issued a warrant for Garey’s arrest after he failed to appear at a February 14, hearing. Attorney Schlueter told The San Bernardino American News that he thinks Garey, Jr. is scared to appear. Before his arrest, Garey had no criminal record, not even a traffic citation.
Caver told The San Bernardino American News that the BLM IE Chapter resolved to protest on July 31, 2020, after criminal defendant Lawrence Bender’s family members and his supporters were barred from the courtroom during his trial due to COVID restrictions.
Caver explained the letters “ftp” he wrote in chalk on the planter stood for “free the people” or “free the protesters” or “fight the power” questioning why he was the only person charged with vandalism, as at a July 10, protest, protesters using washable markers to express their sentiments were not arrested.
Caver became upset watching his friends being unlawfully arrested after peacefully protesting, and reacted spraying the letters “ftp” in chalk on a planter in protest, Schlueter explained with the letters ftp originating from the 1989 Spike Lee movie “Do the Right Thing” where Public Enemy’s song “Fight the Power,” was the opening scene of the movie, featuring a memorable dance routine performed by Rosie Perez. Link: https://www.youtube.com/watch?v=rrkfJ-HsPfA.
Schlueter recognized the song “Fight the Power” became the anthem for the Black Rights Movement, adding that the sheriff thought “ftp” meant #&*k the police and reflected that in their reports.
Schlueter recollected when Caver was in front of his office being arrested, Caver repeatedly told the officers, “It’s chalk, it’s chalk.”
