GLENWOOD SPRINGS — Fredy Cabrera, accused of premeditated first-degree murder in the shooting death of Douglas Menjivar last summer, on Tuesday ultimately rejected a plea deal to accept the lesser charge of second-degree murder.
Cabrera had been prepared to take the plea as recently as Monday, when a previously scheduled pre-trial conference was changed to a plea hearing, according to Assistant 9th District Attorney Scott Turner.
The deal, which Turner said had been in the works for the last couple of weeks, called for dropping the first-degree charge in favor of second-degree murder, with a stipulated sentence of between 16 and 48 years in prison.
A charge of first-degree assault stemming from injuries sustained during the shooting by Cabrera’s stepdaughter, Leydy Trejo, was to be dismissed.
After consulting with his attorneys, Kathy Goudy and Colleen Scissors, on Tuesday morning, and again upon reconsidering his options during the afternoon plea hearing, an obviously conflicted Cabrera changed his mind and rejected the offer.
“This is obviously a very emotional thing for him,” Goudy said outside the courtroom. “Obviously, we respect his decision whichever way that goes.”
At one point following a short recess in the Tuesday hearing, Goudy was ready to advise 9th District Judge Denise Lynch that the deal would be accepted. She was interrupted mid-sentence when Cabrera whispered to Scissors, “no.”
He stood, folded his hands and looked skyward in apparent prayer, then back at his wife and children who were in the courtroom behind him.
At that point, Lynch continued the proceedings to an Aug. 27 pre-trial conference. It will include preparation of jury instructions for the trial, which remains scheduled for Sept. 22 through Oct. 10.
Cabrera, 40, remains charged with first-degree murder in the July 31, 2013, shooting death of Menjivar outside an apartment just south of Glenwood Springs on Garfield County Road 154.
According to the case prosecutors have prepared, Cabrera was allegedly upset that Menjivar, 21, had been dating Trejo, who was 18 and still in high school when she moved into Menjivar’s apartment against Cabrera’s wishes.
Menjivar was an employee at Cabrera’s El Horizonte restaurant and another family business in Carbondale.
According to investigators, shortly before midnight on the night of the shooting, Cabrera had been drinking and waited with a handgun for the two to return to the apartment when the fatal shooting occurred.
Menjivar died en route to the hospital from multiple gunshot wounds. Trejo was shot in the leg during the incident, resulting in a shattered tibia, and was in the hospital for several days.
Defense attorneys have indicated that they will present evidence showing that a scuffle occurred between Menjivar and Cabrera before the shooting, and that Cabrera may have acted in self defense.
Turner said after Tuesday’s hearing that “the door is closing” on the potential for a renewed or amended plea offer, but didn’t rule out that possibility.
“If something happens, it’s going to have to happen very quickly,” he said, noting that the attorneys involved will need the better part of the next month to prepare for trial.
Turner mentioned during the break in Tuesday’s proceedings that he was not disappointed with Cabrera’s decision to reject the plea, saying “it’s his right to plead guilty or not guilty.”
A successful plea bargain would have avoided the time, expense and emotions involved with a lengthy trial, he said.
“Any time you can get a reasonable disposition in a case and avoid the time and resources that would be devoted to a trial, you always hope to do that,” Turner said.
If convicted at trial of first-degree murder, Cabrera could face a sentence of life in prison without parole. A second-degree murder conviction carries no less penalty, except under the stipulated terms of the plea deal, Lynch explained to Cabrera during Tuesday’s hearing.
Meanwhile, Lynch has ruled on some pre-trial motions filed in the case in May and June, while others are pending.
On Aug. 11, Lynch ruled against a defense motion to suppress evidence at trial involving what Goudy said were “inaccurate and incomplete translations” of police interviews with Cabrera and witnesses in the case after the incident. Lynch wrote in her ruling that she would make that determination at trial, or leave it up to the jury to decide.
Still pending is a defense motion to suppress the testimony of two prosecution witnesses, Misael Rivas and Noe Magana, who testified at a preliminary hearing in February that they had heard Cabrera threaten physical harm to both Menjivar and Trejo prior to the shooting.
Defense attorneys have argued that the witness’s testimony regarding prior threats is hearsay.
At a July 15 motions hearing, Lynch did rule that evidence related to Trejo’s statements to police in the hospital after the shooting would not be suppressed. The defense has argued that those statements were not properly recorded, and that they are not reliable because Trejo was in pain and on medication at the time.
Cabrera remains in the Garfield County Jail without bond pending the upcoming trial.
“Any time you can get a reasonable disposition in a case and avoid the time and resources that would be devoted to a trial, you always hope to do that.”
assistant 9th District Attorney