By Virginia Hennessey
Monterey Herald
October 24, 2009
http://www.montereyherald.com/news/ci_13633532
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| The Rev. Antonio Cortes He faces charges of sodomy with 16-year-old boy and possession of child... |
The sex-crime case against the Rev. Antonio Cortes can proceed, a judge ruled Friday.
Judge Larry Hayes said there was sufficient evidence presented at a June 4 preliminary hearing to hold Cortes for trial on charges of engaging in sodomy with a minor and possessing child pornography.
In a courtroom packed with Cortes' supporters, Hayes rejected a motion by Cortes' defense attorney, Eugene Martinez, who argued that prosecutor Rolando Mazariegos failed on multiple levels to provide probable cause to hold the priest. The evidence was presented during a preliminary hearing before Judge Terrance Duncan.
Cortes, who is suspended from his duties as pastor of St. Mary of the Nativity Church in Salinas, is accused of assaulting a 16-year-old boy in the rectory of the church on April 14, then providing him alcohol. The boy told police Cortes had been giving him "spiritual massages" and alcohol for a few years, beginning at Holy Trinity Church in Greenfield, where Cortes was previously assigned.
A computer and two hard drives were subsequently seized from Cortes' living quarters. According to testimony at the preliminary hearing, police found "tens of thousands" of images and videos depicting boys as young as 6 years old engaged in sexual activity.
Cortes is charged with sodomy involving a minor and possession of child pornography, both felonies, and 12 misdemeanor counts that include child molestation, furnishing alcohol to a minor, cruelty to a child and performing an immoral act before a child.
On Friday, Martinez argued that Duncan should have made a finding as to the sufficiency of the evidence supporting the misdemeanor charges.
Mazariegos said he did present sufficient evidence, even though the law doesn't require it or a judicial finding.
Hayes agreed.
Martinez then argued Mazariegos had presented nothing but the opinion of a police officer to prove the males in the computer images were minors.
Hayes said the opinion of an experienced investigator was sufficient for a holding order and agreed with Mazariegos that the names of the electronic files were an additional indication of the boys' ages. Among the less graphic titles: "Boy lovers 6 to 14 years old."
Finally, Martinez argued there was insufficient evidence to support the required elements of the alleged sodomy. During the preliminary hearing, he argued there had been no skin-to-skin contact between the priest and the boy. Duncan ruled any penetration, no matter how slight, qualified as sodomy.
In his motion to reverse the holding order, Martinez argued that an experiment his investigator conducted involving Cortes squatting in boxer shorts proved the sex act the boy described was impossible. Duncan denied admission of the evidence at the preliminary hearing.
On Friday, the Salinas attorney argued that even the boy had been unsure of what happened.
"The victim stated at one point he penetrated," Martinez said. "But when the officer, who was incredulous, asked him if he was sure, he said he wasn't sure. This is not a coin toss."
Martinez argued that it was the duty of the judge at the preliminary hearing to "lean away from public sentiment" and resist "the tendency to say, 'Let the jury decide.'"
Hayes rejected that argument, too. He said Martinez needed more than a photograph of Cortes in tight boxers to prove his point. The boy gave multiple descriptions of Cortes' actions that support the sodomy charge, the judge said.
He ordered Cortes to return to court Nov. 13, when his co-counsel will attempt to suppress evidence against the priest. Salinas lawyer Miguel Hernandez will argue the computer hard drives that were seized from St. Mary of the Nativity were not included on the search warrant that was served.
Cortes is free on $100,000 bail and living with a family in his parish.
Virginia Hennessey can be reached at 753-6751 or vhennessey@montereyherald.com
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