Conviction nixed in street sweeper case
A Yuma County Superior Court judge has thrown out a jury’s guilty verdict against a man accused of stealing a street sweeper from a Walmart parking lot on New Year’s Eve last year. The judge dismissed the case against him after the attorney working on his appeal uncovered evidence of his innocence.
According to court records, on July 28, 2017, a jury found Xavier Jimenez guilty of joyriding and committing theft of means of transportation, a lesser included offense. He was sentenced in October to 36 months of supervised probation and 45 days in jail, with credit for 11 days already served.
He was later ordered to serve an additional 10 days while on probation. Fortunately for him, however, the judge who sentenced him did not follow the original pre-sentence recommendation, which called for Jimenez to be sent to prison for a year and a half.
Jimenez was also ordered to pay more than $7,500 in restitution to the company that owned the street sweeper. In addition to the jail and monetary sentence, his license was revoked, which caused him to lose the job he had at the time.
In August, however, after an evidentiary hearing in which attorney Cynthia Brubaker of the Yuma County Public Defender’s Office introduced proof of Jimenez’s innocence, Superior Court Judge Larry Kenworthy issued a five-page ruling that wiped out the jury’s decision, thus clearing him of any wrongdoing.
“In the course of reviewing Mr. Jimenez’s case on appeal, counsel discovered that Mr. Jimenez is actually innocent and provided proof of his innocence to Deputy County Attorney Thomas Varela, who prosecuted the case in Superior Court and Joseph Maziarz, Criminal Appeals Division, Arizona Attorney General’s office, who represents the interest of the state on appeal,” Kenworthy wrote in his ruling.
Brubaker did not represent Jimenez’s during his trial, but was appointed to represent him during his appeal. While reviewing his case for any legal errors that may have occurred, she found exculpatory evidence that he had been wrongfully convicted
The case began at 3:10 a.m. on Jan. 1, 2017, when officers responded to a report of someone stealing a street sweeper and driving it out of the parking lot of the Walmart at 2900 S. Pacific Ave. The incident was also captured by surveillance cameras.
The street sweeper was later found abandoned in the 2200 block of W. 22nd Street, in front of Jimenez’s residence, and he was arrested and taken into custody.
While reviewing Jimenez’s case on appeal for any legal errors, Brubaker discovered actual evidence of his innocence, specifically that her client did not match the physical description of the suspect who stole the street sweeper. For example, the police said the suspect had a full beard, a bushy mustache and tattoos on both arms, none of which Jimenez had.
Since appeals attorneys cannot raise actual innocence claims only legal errors, Brubaker had to put her about-to-be-filed appellate brief on hold (stay the proceedings) and have the case sent back to Yuma County Superior Court where she could get a hearing scheduled to introduce the new evidence.
Detective Chuck Ordonez, a 30-year veteran of the Yuma Police Department who has since retired, also played a huge role in getting Jimenez’s conviction overturned.
Ordonez began re-investigating the case after the trial because a witness had come forward saying they recognized the culprit in the video who stole the street sweeper and that it wasn’t Jimenez. Working with Brubaker’s evidence and the citizen’s tip, Ordonez realized the wrong person had been arrested, which further proved Jimenez’s innocence.
The witness identified the suspect as being a man by the name of Dennis Luna, who as it turns out was arrested on an unrelated matter, in the same neighborhood, and on the same morning as Jimenez, thus essentially putting him at the scene of the crime.
When Brubaker retrieved prison and jail records for Luna, she saw he also matched the physical description of the suspect from the video. He had a full beard, a bushy mustache and tattoos on both arms.
Based on the evidence she had uncovered, and the new information Ordonez uncovered while reinvestigating the case, Brubaker was granted the evidentiary hearing in Yuma County Court in which Jimenez was found innocent.
While no charges have been filed against Luna yet, he could eventually be linked to the crime because a bloody T-shirt and cellphone were left inside the street sweeper.