During a pretrial conference in Phoenix municipal court Wednesday, Judge Cynthia Gonzales granted a motion for continuance, setting a January 6 date for the next hearing and making clear that this would be the last extension of time for Andy Gary Barrios, who is charged with one misdemeanor count of causing death by moving violation as a result of the December 26, 2015, car crash.
"There will be no further continuances," said Gonzales, noting that there is likely to be a change of plea on January 6, and if not, the next date she sets will be for trial.
Barrios' attorney Grace Meyers agreed with the judge that her client was likely to change his not-guilty plea in January. Gonzales ordered that Barrios be present for the next hearing. So far he has avoided all appearances in the case.
Earlier, Myers told the court that she needed additional time to research the accident. Barrios, 23, is accused of running a red light at 59th Avenue and Indian School Road in the early morning hours of December 26, plowing his black Chevrolet Tahoe into a 1997 Lexus ES300, taking the lives of driver Green, 26, and his two passengers, Hernandez and Martinez, both 25.
Barrios and a friend were coming from a strip club, where they had been celebrating the latter's birthday, and Barrios admitted, according to the police report, that he had four or five beers before getting behind the wheel of his SUV. A blood test taken two hours later at a Phoenix police station showed his blood-alcohol level to be less than .02 percent, below the legal limit of .08.
The most Barrios faces if found guilty of the Class 3 misdemeanor is a $1,000 fine, up to 30 days in jail, and a possible six-month suspension of his driver's license. As New Times reported previously, Maricopa County Attorney Bill Montgomery's office declined to prosecute Barrios on felony manslaughter charges because the MCAO determined there was no reasonable likelihood of conviction.
As a result, to the anger and sorrow of the families of the three slain men, Barrios was charged by the Phoenix city prosecutor with the single misdemeanor. By contrast to the misdemeanor's light punishment, felony manslaughter carries a sentencing range of four to 10 years in prison.
The families of Green and Hernandez were in court for the hearing, and representatives of each family addressed the judge concerning the motion to continue.
Scott Green sobbed as he spoke, explaining his family's need for closure regarding his son.
"It's been a long year for my family," he said. "And with the holidays coming up, it's going to be especially hard. I don't want to forget my son, but if you could possibly have this thing resolved somehow."
Hernandez's mother, Christina Chicharello, spoke on her family's behalf, expressing frustration that Barrios, if convicted, would be "getting next to nothing for taking three men's lives," and that he remains free on a $5,000 bond while awaiting trial.
City prosecutor Garrett Griggs opposed the motion to continue, asked for a trial date, and demanded that Barrios be present at the next hearing. Meyers, noting that emotions were running high, asked the judge if Barrios could appear telephonically. Though Judge Gonzales granted the continuance and ordered that Barrios appear in person, she said Barrios could wait in another courtroom, if necessary, on January 6.
"If they had taken Barrios to trial on a felony and lost, I would feel better about it than this." — Scott Green, father of crash victim Jonathan Green
After the hearing, Scott Green and his daughter, Jonathan's sister Holly, spoke to New Times as Holly's young son, D.J., scampered on the floor. They are upset with the misdemeanor charge.
Scott Green said that having read the police report of the investigation, he feels that the officers were bending over backward to accommodate Barrios, even though Barrios admitted he'd been drinking and there was an unopened 12-pack in the SUV according to the report.
"His admission to drinking [four to five beers] is the thing that puzzles me," Green said. "The police say they didn't smell alcohol on him. It doesn't sound right."
He also said he wished the county attorney's office had filed a felony charge, which might have compelled Barrios to plead down to something higher than the misdemeanor he now faces.
"I don't see how [the prosecutor] was worried about this case," he said. "There are comparable cases where the person was charged. If they had taken Barrios to trial on a felony and lost, I would feel better about it than this."