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An attorney for Fabian Gonzales asked a judge Wednesday to order prosecutors to provide an updated theory about how 10-year-old Victoria Martens died in 2016.
State District Judge Cindy Leos denied the request, saying the prosecution theory of the case is “relatively simple.”
Gonzales, 37, is charged with abuse of a child, recklessly caused, and other crimes in Victoria’s 2016 killing. His trial is scheduled to begin July 11.
Stephen Aarons, Gonzales’ attorney, said the state’s theory about how Victoria was killed has evolved so much over the years that allegations listed in a 2018 “statement of facts” don’t allow Gonzales to mount a defense.
The prosecution case is “closed” to the defense, Aarons said.
“What makes it closed is that we can’t interview witnesses when the state’s theory changes, and we’re very unclear as to what the state’s theory is,” Aaron said in a hearing Wednesday.
Just weeks after Victoria’s death in August 2016, Gonzales was charged with 20 felony crimes, including first-degree murder and two counts of aggravated criminal sexual penetration in connection with the girl’s death.
But in June 2018, 2nd Judicial District Attorney Raúl Torrez announced that the charges against Gonzales had been based on false admissions to police made by Victoria’s mother, Michelle Martens.
In September 2018, prosecutors dismissed the murder and criminal sexual penetration charges against Gonzales and instead charged him with abuse of a child, recklessly caused, in Victoria’s death.
Prosecutors also issued a “statement of facts” that month alleging that a man referred to in court records as “John Doe” entered the apartment and killed Victoria.
The statement said John Doe killed Victoria because Gonzales had threatened people with gang-related violence after he was punched at a barbecue party several days before the killing.
Prosecutors indicted John Doe in 2018 for first-degree murder and other charges. His identity remains unknown.
The allegation was based on information from Gonzales’ cousin, Jessica Kelley, who told police that a “well-dressed” Hispanic man killed Victoria.
Kelley, 37, and Michelle Martens, 40, each have pleaded to felony charges in connection with Victoria’s killing.
No sentencing hearing has been scheduled in Martens’ case.
Kelley was sentenced in April to 44 years in prison after pleading no contest to six felony crimes, including reckless child abuse resulting in the death of a child.
In a motion filed earlier this month, Aarons said prosecutors no longer plan to introduce gang evidence at Gonzales’ trial, which means prosecutors now have a new theory about the killing, which, he argued, they should reveal in a new statement of facts.
In denying the motion, Leos offered her own brief description of prosecutors’ theory about Victoria’s killing.
“I don’t think they’ve been hiding the ball on anything, because I have an understanding of it,” Leos said. “I think (prosecutors) are proceeding on potentially alternate theories. Either Jessica Kelley did it, or this well-dressed stranger did it.”
Deputy District Attorney Greer Rose responded to Aarons request that prosecutors have provided Gonzales’ attorneys with a vast amount of information about how the state intends to present its case.
“The state is not under obligation to give (Aarons) a roadmap of what we plan to present in trial,” Rose said. “That’s his job.”
Leos agreed to Aarons’ request to issue an arrest warrant for a woman who lived in an apartment next door to the Martens’ apartment the night Victoria was killed. Aarons identified the woman as a key defense witness.
But Leos denied Aarons’ request to issue arrest warrants for four other witnesses who have evaded subpoenas to testify, including two women who were present at the barbecue party. Leos told Aarons to renew efforts to find current addresses for those witnesses.
