Andy Barrios, the driver in a 2015 Christmas-night car crash that killed three men, including popular Phoenix rapper Jose "Low Key" Hernandez, failed to make a July 1 initial appearance in Phoenix municipal court for the low-level misdemeanor he faces stemming from the fatal collision.
As a result, the court issued a warrant for the 23-year-old Barrios, who, according to the Phoenix Police Department's incident report, admitted that he had four to five beers at a local strip club before he ran a red light at 59th Avenue and Indian School Road in the early-morning hours of December 26, slamming his black Chevrolet Tahoe into a 1997 Lexus ES300, killing driver Jonathan Green, 26, and his two passengers, Hernandez and Jose "Chico" Martinez, both 25.
Court records show that Barrios was picked up for the July 1 warrant last Friday and held on a $5,000 bond, which he later posted. He was released Monday and was due back before municipal court Judge Carrie Withey on Tuesday.
By midday Tuesday, with family members of Hernandez and Green present, Barrios remained a no-show, though he had until day's end to enter a plea on the single count of causing death by a moving violation — a Class 3 misdemeanor punishable by a maximum $1,000 fine, up to 30 days in jail, and a possible six-month suspension of his driver's license.
To allow the family a chance to address the court without waiting longer, assistant city prosecutor Garrett Griggs requested that if Barrios failed to appear, Judge Withey set his bail at $50,000, considering that he had not made it to a previous court appearance in the case and had a warrant outstanding in an unrelated case.
An additional failure to appear would be "a continuation of [Barrios'] conduct toward this court," argued Griggs, who then introduced the family members seated in the gallery: Hernandez's mother, Christina Chicharello; his grandmother, Deborah Murdoch; and Green's common-law wife, Sophia Espericueta.
Before any of the women got a chance to speak in favor of a high bail for Barrios, a bailiff handed the judge a note, which she read and shared with the prosecutor: Barrios had secured private counsel, Phoenix defense attorney Grace Myers, who had filed a notice of appearance with the court, stating that Barrios was pleading not guilty to the charge.
So there would be no higher bond. The judge set a pretrial conference for August 8, with Barrios to remain free on his own recognizance, though she forbade Barrios from making any contact with the victims' loved ones. Then she asked if the family members still wished to be heard.
Hernandez's grandmother took her up on her offer.
"Whatever you could do, I wish you would do to that kid," Murdoch told the judge, her voice cracking. "He's a menace. He's killed three kids."
Outside the courtroom, reality was setting in with the victims' relatives that they were going to have to fight for a guilty verdict on the Class 3.
Chicharello was angry that the City of Phoenix hadn't charged Barrios with more misdemeanors. Phoenix police estimated that his Chevy had been traveling 56 mph in a 40 mph zone when the accident occurred, yet Barrios had not been cited for speeding, nor for running the red light. Though the police report stated that Barrios was driving without insurance, he was not cited for that, either.
Chicharello called the situation "sickening," and she was even madder at the Maricopa County Attorney's Office for "dropping the ball" by not charging Barrios with a felony.
"They probably should have done something at [the county attorney's office]," Chicharello told New Times as she left the court. "Instead of letting it drop, the [city prosecutor] picked it up here and gave it a little shit charge."
Despite Barrios' alleged admission to drinking and driving, a blood test showed that he was below the legal blood-alcohol limit for the state of Arizona, and the officers who filed the report said they didn't smell alcohol on Barrios or observe any signs of impairment.
(Chicarello says the police officer who notified her of her son's death told her Barrios smelled of alcohol, but there is nothing to this effect in the department's written account of the incident.)
As previously reported by New Times, the county attorney's office sent letters to the victims' relatives, stating that felony charges were not being pursued against Barrios because the MCAO had determined there was "no reasonable likelihood of conviction at trial."
Former prosecutors New Times spoke with said that in the case of a Class 2 felony manslaughter charge, the MCAO's call may be accurate, because the county attorney would have to prove that Barrios "recklessly" caused the deaths of others.
Given that Barrios was found to be driving less than 20 mph over the posted speed limit at the time of the crash, the speeding is not considered a criminal offense. And with no signs of impairment observed, recklessness would present a high bar.
Patricia Abeyta-Young, a victims-services specialist for the Arizona chapter of Mothers Against Drunk Driving, was on hand Tuesday at Chicharello's request. She said she'd never seen a case like this one in her four years with MADD, in which a driver admitted to drinking before a fatal crash but had not been found to be impaired and so was not charged with a felony.
"It's different than any of the cases I've ever gotten, that's for sure," she told New Times.
Democrat Diego Rodriguez, a former prosecutor with the Pima County Attorney's Office who is challenging Republican incumbent county attorney Bill Montgomery in this fall's general election, contends that there is another option. He says the MCAO could charge Barrios with endangerment, a Class 6 felony for which the presumptive sentence would be a year's imprisonment.
"If you're speeding and you run a red light, you're endangering people as you operate a vehicle," Rodriguez explained to New Times. "He could have endangered any other person in that area."
What if the three victims killed Christmas 2015 had been police officers? Would Barrios have been charged differently by the MCAO?
Rodriguez thinks so.
In that case, Montgomery would have charged Barrios with a felony "and taken his lumps" if he lost, Rodriguez argued. He called the Barrios case "just another example of where Montgomery makes political decisions when he should be making decisions based on the facts, and what does justice."
Granted, Rodriguez isn't a disinterested bystander when it comes to the workings of the MCAO. But that doesn't mean he's wrong.
"A misdemeanor conviction for killing three people?" the candidate asks. "Even if you got three misdemeanor convictions — I'm sorry, that's not justice. And you're not protecting the community, either."
After court Tuesday, Espericueta was both sad and frustrated with the case. Green, whom she was engaged to wed in November, was helping her raise their four young children, all girls, ages 1 to 13. Her second-youngest child has cystic fibrosis, but they all need their father.
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"I don't want to be negative, but this ain't right," she told New Times, wiping away tears. "They've already made it clear the maximum [possible punishment for Barrios] is 30 days. And the judge doesn't even have to give him that."
Staring into space, she said she feels that no matter what she does, the result will be the same.
"I've made peace with it," she said. "I've given it to God. It's just one of those things."
Jose "Low Key" Hernandez's charity, H.O.P.E., will hold a fundraiser and tribute show on August 20 at Marc's Sports Grill and Nightlife, 4494 West Peoria Avenue, Glendale. For more information, visit marcssportsgrillandnightlife.com