Cler­i­cal er­ror frees vi­o­lent felon for a week

Deputies re­cap­ture man sen­tenced to 8 years in prison who walked free

The Mercury News Weekend - - FRONT PAGE - By Tracey Ka­plan tka­plan@ba­yare­anews­group.com

SANJOSE » Freed by ac­ci­dent from Elm­wood jail last week, a con­victed felon who had just been sen­tenced to eight years in state prison for pis­tol-whip­ping his rob­bery vic­tim spent seven days on the lam, in­clud­ing shop­ping at a pop­u­lar East San Jose mall— and post­ing self­ies of the trip on In­sta­gram.

David Lopez, 31, was nabbed shortly be­fore noon Thurs­day at a San Jose golf course, sources said, a week af­ter be­ing re­leased from the Santa Clara County jail in Mil­pi­tas by mis­take.

The em­bar­rass­ing in­ci­dent started a week ago, when what started out as an ex­tremely crummy

day for Lopez­mor­phed into a mirac­u­lously lucky one.

A judge sen­tenced him Sept. 28 to eight years in state prison for pis­tol-whip­ping an ac­quain­tance two years ago while both were high on meth, and then steal­ing his jew­elry, a PlayS­ta­tion and TV.

But a few hours af­ter the sen­tenc­ing hear­ing, cor­rec­tional deputies at Elm­wood ush­ered him out the door at 7:45 p.m.

The er­rant re­lease oc­curred be­cause of amis­take a civil­ian clerk in the ad­min­is­tra­tive book­ing unit of the Depart­ment of Cor­rec­tion made, sources said.

What ap­par­ently hap­pened was the court had sent over two sep­a­rate “minute or­ders,” forms that doc­u­ment each stage of every court case.

One page re­ported that Lopez had been sen­tenced by Judge Hector E. Ra­mon to time he had al­ready served for a sep­a­rate, un­re­lated grand theft.

That meant he could no longer be held in cus­tody on that charge and had to be re­leased as soon as pos­si­ble.

But the clerk ap­par­ently did not take note of a sep­a­rate page re­gard­ing Lopez, which re­ported his prison sen­tence for the rob­bery con­vic­tion.

To com­pound mat­ters, be­cause Lopez was no longer listed as an in­mate, jail of­fi­cials had no way of know­ing he was miss­ing un­til they found out about the pa­per­work mis­take early Wed­nes­day, six days af­ter he walked out of Elm­wood.

But within a lit­tle more than 24 hours af­ter dis­cov­er­ing it, sher­iff’s deputies who stayed up all night work­ing on the case had nabbed him Thurs­day, at Ran­cho del Pue­blo Golf Course.

Sources said he had just ar­rived at the course when he was cap­tured; it was un­clear whether he planned to golf or shag balls, or was vis­it­ing for some other rea­son.

Prior to that, Lopez had posted the In­sta­gram pho­to­graphs of him­self en­joy­ing a day at EastridgeMall.

Er­rant re­leases are rare, but the county can be held li­able if an in­mate who is mis­tak­enly re­leased com­mits an­other crime, dam­ages some­thing or in­jures some­one.

Un­der­sh­er­iff Carl Neusel, who also serves as chief of the county’s Depart­ment of Cor­rec­tion, is­sued a writ­ten state­ment Thurs­day, vow­ing to take steps to en­sure such mis­takes do not oc­cur again.

“This en­tire event is un­ac­cept­able and alarm­ing to us at the Sher­iff’s Of­fice,” ac­cord­ing to the state­ment. “We are thank­ful we were able to bring Lopez back into cus­tody quickly upon the dis­cov­ery of our er­ror. We are re­view­ing our checks and bal­ances to in­cor­po­rate added se­cu­rity mea­sures in our court docket re­view pro­cesses.”

The mis­take was the lat­est in a se­ries of black eyes for the Sher­iff’s Of­fice and county, which jointly run the jails. In 2015, a men- tally ill in­mate was beaten to death by three jail guards who were con­victed of sec­ond- de­gree mur­der ear­lier this year and are set to be sen­tenced later this year to 15 years to life in prison.

Last Novem­ber, four in­mates es­caped from a sec­ond- story dorm on the eve of Thanks­giv­ing af­ter spend­ing days cut­ting through the bars of a cell win­dow and rap­pelling to the ground us­ing a rope fash­ioned out of clothes and bed­ding.

A for­mer po­lice offi- cer held in a neigh­bor­ing cell on sex charges told at least three cor­rec­tional of­fi­cers that he heard sus­pi­cious sounds, ac­cord­ing to sources fa­mil­iar with the in­ves­ti­ga­tion.

How­ever, cor­rec­tional deputies didn’t fully in­ves­ti­gate that tip. They also failed to re­move a makeshift opaque shade cov­er­ing the cell win­dow — in clear vi­o­la­tion of jail pol­icy — that masked the in­mates’ hand­i­work, the sources said.

For­mer Un­der­sh­er­iff John Hirokawa, who is run­ning against Sher­iff Lau­rie Smith in the up­com­ing June elec­tion, crit­i­cized her late Thurs­day for the Lopez in­ci­dent, call­ing the ac­ci­den­tal re­lease of a se­ri­ous and vi­o­lent felon “em­blem­atic of Lau­rie Smith’s in­com­pe­tence and in­abil­ity to safely man­age the jails.”

“More­over, her fail­ure to im­me­di­ately no­tify the public that this vi­o­lent in­mate had been mis­tak­enly re­leased put the public at se­ri­ous risk of harm,” Hirokawa said in a writ­ten state­ment.

Smith did not di­rectly ad­dress why she didn’t warn the public and re­lease Lopez’s mug shot, but ear­lier in the day, her staff asked this news or­ga­ni­za­tion to re­frain from post­ing the story on the web be­cause deputies were on the brink of capturing him and were afraid he would flee or take hostages.

In­stead, Smith blamed Hirokawa, who as un­der­sh­er­iff and chief of the cor­rec­tions depart­ment be­fore he re­tired used to su­per­vise the ad­min­is­tra­tive book­ing unit.

“Un­for­tu­nately, clean­ing up the messes left by the re­cently de­parted chief of cor­rec­tions is a full-time job,” Smith said in a writ­ten state­ment. “We have added ad­di­tional over­sight to en­sure this doesn’t hap­pen again, and I want to com­mend our deputies for re­spond­ing as swiftly as they did to ap­pre­hend the sus­pect af­ter this pa­per­work er­ror.”

Lopez

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