Crime

DA drops murder, felony drunk driving charges for man accused in deadly boat crash

Juan Francisco Moreno Herrera said he spent the past three months in the Stanislaus County Jail praying that the truth would be revealed and he could return home to his children. He was facing murder charge in connection with a boat crash, and he couldn’t afford to post a $2 million bail bond.

“I was in hell; that’s hell in there,” Herrera said Friday, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”

Herrera, 43, of Salida, who was accused in the deadly Modesto Reservoir boat crash, was released from the jail after prosecutors on Tuesday dropped the murder charge against him.

He was released on his own recognizance. He had been held in custody since July 5 in connection with the death of Vanessa Zamora, 14, of Watsonville and the injuries her 15-year-old cousin suffered in the crash.

Prosecutors had alleged Herrera had been driving drunk when his boat collided with the two girls on a jet ski. They initially charged Herrera with one count of murder and two counts of driving a boat while under the influence of alcohol.

The felony DUI charges indicated the girls were injured as a result of Herrera’s actions. A filed affidavit to support an arrest warrant on the murder charge indicated that Herrera drove “his boat around in circles and did not attempt” to help either injured girl in the water.

Kirk McAllister, Herrera’s attorney, says those allegations were false. He said his law firm conducted its own investigation into the boat crash. After speaking to witnesses, the defense investigation learned that the girls on the jet ski had crashed into his client’s boat.

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“What are investigation showed was that in fact they ran into him,” McAllister said. “In boating terms, he had the right of way. They hit him on the port side, or the left side. ... He did the right thing, he powered down (the boat).”

The attorney said the defense investigation also learned from witnesses that Herrera had jumped in the water to keep Vanessa’s cousin afloat.

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“He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water,” McAllister said. “He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”

The people in the other boat helped Herrera get the girls out of the water, McAllister said.

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McAllister submitted the defense investigation’s findings to the Stanislaus County District Attorney’s Office. On Tuesday, the prosecution dropped felony DUI charges, along with the murder charge.

Deputy District Attorney Michael Scheid — who has been assigned to this case — filed an amended criminal complaint against Herrera on Tuesday. The only charges against Herrera on the new complaint are two misdemeanor counts of driving a boat while under the influence of alcohol. The misdemeanor charges do not indicate that Herrera’s alleged actions result in injuries to either of the girls.

John Goold, a spokesman for the District Attorney’s Office, said the law requires in any vehicular manslaughter case that each element of the crime be proved beyond a reasonable doubt.

“It is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” Goold said in an email to The Bee.

It must be proven that a person “did an act or neglected any duty imposed by law… which act or neglect proximately caused bodily injury,” Goold said.

“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” Goold said in the email.

The defense attorney said the decision to charge his client with murder was made after some deliberation by prosecutors, because the murder charge was filed nearly two weeks after the crash.

“And how they could get it so wrong,” McAllister said. “It obviously wasn’t a problem of deciding too quickly, because they did take their time. But they absolutely got it wrong.”

Stanislaus Superior Court Judge Nancy Ashley granted McAllister’s request to release Herrera from jail on his own recognizance. The prosecutor did not object to the defense attorney’s request.

“I got my life back,” Herrera said, recalling the moment the judge ordered him released from jail. “I wanted to see my kids, because I didn’t want my kids to see me in (jail).”

The deadly crash was reported shortly before 5 p.m. June 22 at Modesto Reservoir, just north of Highway 132 on the east end of the county. The wreck occurred just north of the reservoir’s main boat ramp, on the south side of the reservoir.

Herrera initially was arrested on suspicion of driving a boat while under the influence of alcohol causing injury. Herrera bailed out of jail June 23, but he was arrested again July 5 with the additional charge of murder.

He worked as a construction foreman at the time of his arrest. He has two children, ages 13 and 5.

“My whole world collapsing; my kids. It put my life upside down,” Herrera said about the moment he learned of the murder charge. “Horrible, a horrible situation that they put me through and my family.”

Herrera said he was shocked to learn authorities were now accusing him of murder and alleging he was responsible for their injuries. He said he always knew he had done the right thing after the crash.

“To save them; to get them to safety,” Herrera said Friday afternoon in his attorney’s downtown Modesto office. “I didn’t think about it much, I just jumped in the water and saving them.”

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Vanessa died June 28 at UC Davis Medical Center in Sacramento. The Stanislaus County Sheriff’s Department’s Major Accident Investigation Team was called to investigate the crash.

Sheriff’s Deputy Shawn Baucom submitted an affidavit in support of the murder arrest warrant for Herrera. The document was filed July 5 in Stanislaus Superior Court.

In the affidavit, Baucom wrote that Herrera broke several other federal inland navigation rules, including failing to render aid, unsafe speed and improper lookout. His previous DUI convictions elevated the alleged drunk driving crime to murder.

Baucom wrote that the Sheriff’s Department investigation learned that Herrera was at fault for the collision, and Vanessa’s death and her cousin’s major injuries were a direct result of the crash, Herrera’s intoxication, his boating negligence and his failure to act after the crash.

The deputy wrote that “two independent witnesses” said that Herrera drove his boat in circles after the crash and failed to render aid to either injured girl in the water. There was no indication in the affidavit who were these witnesses.

The Bee asked the Sheriff’s Department about the crash investigation and whether the witnesses mentioned in the affidavit provided misleading or false information. Sheriff’s officials declined to answer these questions and did not want to comment on the case, said Sgt. Josh Clayton, a sheriff’s spokesman.

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The defense attorney commended the prosecutor who reviewed the defense investigation reports and decided to drop the charges. But he said that decision could’ve been made earlier without Herrera spending months in jail.

“It seemed to be a classic example of ‘We have a theory, and let’s look for the facts to support it,’” McAllister said. “Unfortunately, the facts didn’t support it.”

Another sheriff’s deputy conducted field sobriety tests on Herrera. The deputy noticed that Herrera had red, watery eyes, slurred his speech and smelled of alcohol. Herrera told the deputy he’d had two beers, according to the affidavit.

Over an hour after the collision, Herrera had a blood alcohol content of .071 percent, Baucom wrote in the affidavit.

“With my training and experience, I know the average person burns off approximately .01 - .012% per hour leading me to believe (Herrera) had blood alcohol content greater than the legal limit of .08% ... at the time of the collision,” Baucom wrote in the affidavit.

The deputy also wrote that a pathologist who conducted girl’s autopsy believed that oxygen deprivation was one of the primary causes of her death, six days after the collision. She also suffered major head injuries.

Herrera said he still thinks about the injured girls in the water.

“I can’t get them out of my head, I tried everything,” Herrera said. “I wish I could’ve done something more, but I couldn’t. I did everything I could.”

Herrera still faces the two misdemeanor DUI charges. Judge Ashley scheduled him to return to court Nov. 22 for a pretrial hearing.

Rosalio Ahumada writes news stories about criminal court cases in Stanislaus County for The Modesto Bee, issues related to immigration and immigrant communities and breaking news related to crime and public safety. From time to time, he covers the Modesto City Council meetings. He has worked as a news reporter in the Northern San Joaquin Valley since 2004.
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