Orange County Superior Court Judge William Froeberg earlier this month had tentatively ruled against the motion to dismiss charges against former
Froeberg upheld that ruling today.
Attorney John Barnett, who represents Ramos, said he would appeal to the Fourth District Court of Appeal in
The argument over whether to dismiss charges principally revolves around Ramos allegedly holding up his fists to Thomas, threatening to ``(Expletive) him up,'' which Orange County District Attorney Tony Rackauckas has claimed frightened Thomas, leading him to run away from the officers and trigger the deadly conflict.
Rackauckas argues Thomas had a right to defend himself, and that he appeared confused and flustered by Ramos' commands.
Barnett, however, argued that prosecutors conveniently ignore that Ramos also added he would only carry out his threat if Thomas failed to obey his instructions. Barnett argued that it was akin to a police officer saying, ``Stop, or I'll shoot,'' to a suspect.
Under the prosecution's legal theory, if an officer shouted that order at a car thief, for example, and the suspect turn and ran, causing a school bus full of 30 children to roll over, killing all of the passengers, then the officer would be held liable for their deaths, Barnett said after today's hearing.
Froeberg, however, ruled the videotape of Thomas' beating was sufficient evidence to go forward with a trial.
Froeberg set a June 28 trial date for Ramos and Cicinelli after much discussion that appeared to indicate the actual trial will happen later in the year.
Former Officer Joe Wolfe, 37, who was indicted in September on felony counts of manslaughter and excessive force, will return to court March 29 for a hearing on his attorney's motion to dismiss charges and to set a trial date.
Rackauckas pushed for a trial in May for Ramos and Cicinelli, but Barnett and Cicinelli's attorney, Michael Schwartz, said they had other cases set to go to trial then. Barnett suggested an October trial.
Rackauckas said he thought the trial would last three or four weeks. Barnett and Schwartz said it would take about five weeks.
It's likely Wolfe will be tried separately since his indictment came a year after charges were filed against the other co-defendants.
Thomas' father, Ron Thomas, urged Froeberg to set a trial date as soon as possible.
``In July it will be two years'' since his son's death, Thomas said.
The attorneys on the case in that time ``could write whole novels on what happened to Kelly,'' Thomas said. ``It's just a matter of stalling and I would like to proceed for justice for my son.''
Police went to the
Wolfe and Ramos confronted Thomas at the transportation center. While Wolfe went through a backpack Thomas had with him, Ramos and Thomas engaged in a lengthy, often sarcastic and prickly, exchange.
Wolfe found letters in the backpack addressed to an attorney, prompting him and Ramos to discuss arresting Thomas for possession of stolen property. Investigators later determined the letters were not stolen.
Thomas ran from the officers after Ramos held his fists up to him and ordered him to follow his instructions. That touched off the skirmish that ultimately included six officers as they worked to restrain Thomas.
Ramos faces a potential sentence of 15 years to life if convicted of second-degree murder but only four years if convicted of involuntary manslaughter. Cicinelli and Wolfe face a maximum sentence of four years in prison if found guilty.