John Giumarra III made a phone call from jail asking his mother and brother to approach a family friend to contact a judge following his arrest last year in a crash that killed a bicyclist, according to attorneys representing the bicyclist's family in civil proceedings.
It's unclear from the recording of the call which judge Giumarra, a member of a prominent farming family, asked the family friend to contact, or what exactly the friend was to tell the judge, said Daniel Rodriguez, president of civil law firm Rodriguez & Associates.
"We're going to get to the bottom of that in the civil matter," Rodriguez said.
Giumarra, 48, is a member of the family that runs Giumarra Vineyards Corp., which packs and ships California table grapes and is headquartered just east of Bakersfield.
Earlier this month, he was sentenced to 90 days in jail — which he's eligible to serve as work release — after pleading no contest to three misdemeanor charges in the fatal crash in January 2017. His blood alcohol content was 0.18 percent, more than twice the legal limit, when he collided with the bicyclist.
Rodriguez & Associates is representing the family of the bicyclist, Angela Holder, in the civil proceedings.
In the criminal case, Giumarra had faced a felony charge of hit-and-run, but a judge reduced it to a misdemeanor, a ruling that led to widespread outrage on social media and speculation he received favorable treatment due to his position in the community.
His defense counsel painted him as someone deserving of leniency. In fact, they were prepared to argue if the case went to trial that he shouldn't have been charged with anything.
But Rodriguez said Giumarra's arrest records and court documents indicate he has long experienced problems with alcohol both in criminal matters and in his family life.
Jeffrey E. Zinder, the San Fernando Valley-based attorney listed in court records as representing Giumarra in the civil case, did not respond to phone and email requests for comment.
Since 1987, Giumarra has been arrested five times. Four of those arrests involved alcohol, Rodriguez said.
Two of those cases were dismissed. He was convicted in three others, including a 2015 incident in which he pleaded no contest to a "wet and reckless" charge after police found him under the influence in a vehicle parked in the driveway of his home.
Giumarra was still on probation for that conviction at the time of the fatal crash. The terms of his probation included not having any alcohol in his system while driving.
"How many chances do you give to a person before you say 'enough is enough?'" Rodriguez said.
Just four days before the crash, records show, Giumarra was in court for divorce proceedings. At that hearing, Judge Jose R. Benavides ordered Giumarra to continue his alcohol rehabilitation counseling.
At a 2015 hearing regarding visitation rights with his five children, Giumarra was ordered not to consume alcohol for a certain time period before picking them up, or at any time he's with them.
He also was ordered to pay for an alcohol-monitoring Breathalyzer, and that he use it upon request of his wife any time he was with the children or within 24 hours of a scheduled visit.
"If (Giumarra) fails to test or tests positive either 24 hours before or at any time he either has a right to be with the children or is with the children, his visitation rights as set forth in this document shall automatically terminate pending a further hearing in this matter," according to court records.
GIUMARRA’S ACTIONS THE NIGHT OF THE CRASH
Prosecutors found Giumarra did not commit an "independent unlawful act" other than driving while impaired, so they did not charge him with felony DUI offenses.
By an independent unlawful act, prosecutors said there was no evidence Giumarra swerved, was speeding, ran a red light or committed any other violation to cause the collision.
Holder, who had high amounts of methamphetamine in her system, darted across the roadway and collided with Giumarra's SUV, said Giumarra's attorneys, Jeremy Brehmer and H.A. Sala. They argued there was nothing Giumarra could have done to prevent the collision.
Prosecutors charged him with two misdemeanor DUI charges, and a felony hit-and-run charge after determining he drove from the scene of the crash in the 1600 block of Golden State Avenue to a gas station on F Street.
Rodriguez, however, citing police reports in the case, said he believes more serious charges could have been filed.
At the time of the crash, Giumarra had been on probation for 14 months for the wet-and-reckless conviction. Under his probation terms, he was not to drive with any alcohol in his system.
Police in the reports said evidence suggested Giumarra may have been on his phone just before or at the time of the crash.
A tipster told police that the person who was on the line with Giumarra told her he heard a loud banging sound, then the line disconnected, according to the reports.
Interviewed by police, the man said Giumarra had called him two hours before the crash, and the conversation ended when Giumarra told him he had to go and would call him back.
Giumarra's defense attorneys later said phone records subpoenaed after police wrote their reports show Giumarra was not on his phone at the time of the crash.
Rodriguez, however, argued doubt remains regarding whether he was on the phone.
There's also doubt, the attorney said, whether Giumarra was distracted by the radio.
According to police reports, Giumarra said he was playing with his radio when he felt an impact and saw something along the right side of his SUV. He then heard a dragging noise.
He told police he believed he may have hit something, but wasn't sure what it was.
But one officer wrote that Giumarra, upon being asked if he'd been involved in a collision, said, "Yes, that person came out of nowhere. I didn't even see them."
That statement, Rodriguez said, shows that not only did Giumarra know he hit a bicyclist, but by using the word "them" it indicates he also saw the other bicyclist who had stopped by the side of the road.
BURDEN OF PROOF
The attorney noted other issues, all of which are contained in court documents and have been previously addressed by prosecutors and Giumarra's defense counsel in the criminal proceedings.
District Attorney Lisa Green said Friday that Rodriguez, while making interesting postulations, does not face the same high burden of proof that prosecutors do in criminal trials. She said her office and its investigators vetted the case "every which way" and concluded there was no independent unlawful act on the part of Giumarra.
In criminal trials, prosecutors must prove beyond a reasonable doubt that the charges against the defendant are true. It's the highest standard of proof in any trial, and it means the jurors or judge have no doubt — or if there are doubts, they're unreasonable ones — about the defendant's guilt.
The standard of proof in civil trials is referred to as a "preponderance of evidence," meaning the plaintiff must have just enough evidence to show what the claimant is trying to prove is true.
Attorneys sometimes use the example of a balance scale to demonstrate the difference between the proofs necessary in each case.
Starting with an equally balanced scale, if the evidence moves the scale even slightly in one direction, that's a preponderance of evidence. To illustrate proof beyond a reasonable doubt, the scale would be weighted entirely in one direction.
A day before Giumarra's preliminary hearing — at which a judge determines if there's enough evidence to order a defendant to stand trial — Superior Court Judge Judith K. Dulcich reduced the most serious charge against from a felony to a misdemeanor.
Dulcich's decision to reduce the hit-and-run charge frustrated the DA's office and led to more cries of favorable treatment. Giumarra's attorneys said the judge's move was appropriate given the facts of the case.
Prosecutors said it's extremely rare for a judge to reduce charges without first having heard the evidence presented at a preliminary hearing. Rodriguez echoed this comments.
Without hearing the evidence, he said, a judge "might get the decision flat-out wrong."
Giumarra does have his supporters. Several wrote to The Californian after his sentencing.
"Overwhelmingly, people think Giumarra got away with killing a woman, who was high on meth, while he himself was under the influence of alcohol," wrote Brad Roark. "What most of these people choose to ignore is the police investigation concluded the woman riding the bicycle was the one who was responsible for the accident, and ultimately her own death."
Given Giumarra's prior history, Rodriguez, among others, doesn't see it that way.
"We think Giumarra is a danger to the community," he said.