The Fresno Bee Pablo Lopez column

Aug. 20--The lawyer for Loren LeBeau, the former Central High School basketball coach sent to prison for a drunken-driving crash that killed 7-year-old Donovan Maldonado, filed a motion Friday in Fresno County Superior Court to withdraw his no-contest plea to manslaughter charges.

Fresno attorney Roger Nuttall, who is defending LeBeau, said the motion is based on new evidence -- a video that re-creates the deadly crash on Shepherd Avenue near Woodward Park in July 2012.

In essence, the video shows that no driver -- drunk or sober -- would have seen Donovan crossing the street, Nuttall said. Therefore, LeBeau should not be found guilty of manslaughter, the lawyer said.

"It goes to causation," the legal requirement to get a manslaughter conviction, Nuttall said.

A judge will hear the motion Oct. 21.

The District Attorney's Office said it plans to oppose the motion.

Donovan was with his family when he was hit in a crosswalk on Shepherd Avenue between Millbrook and Perrin avenues during the early evening hours of July 25, 2012. The boy was fatally injured after he was dragged under LeBeau's car for more than 800 feet, according to police estimates. His father, Jesse Maldonado, also suffered serious injuries. Donovan's younger sister, Bella, then 18 months, was near death but was revived at a hospital.

In the aftermath of the deadly crash, Fresno attorney Warren Paboojian sued the city on behalf of Donovan's family and received a $1.15 million settlement. The city also put a bike path tunnel under Shepherd so pedestrians would not have to cross the busy road where Donovan and his family were struck.

In addition to the city settlement, LeBeau, who is behind bars at the California Correctional Institution in Tehachapi, also was found liable, and his insurance company paid the Maldonados $100,000.

In his bid to withdraw his no-contest plea and get a new trial, LeBeau mentions the video used by Paboojian to get the civil settlement, Paboojian's November 2013 declaration in support of his civil case and the declaration by Edward M. Stevens, an accident-reconstruction expert hired by Paboojian for the civil case.

Paboojian, however, said Friday that the video is not new evidence; LeBeau's defense team had the video before he pleaded no contest.

"The family has confidence in the DA's office to oppose the motion," said Paboojian, who made it clear he did not give the video to LeBeau's legal team.

In an interview Friday, Nuttall said LeBeau's former lawyer, Jeffrey Hammerschmidt, didn't know about the video until a day before LeBeau was sentenced to 12 years in prison. Nuttall also noted that the 5th District Court of Appeal gave LeBeau the option to withdraw his plea after ruling that Superior Court Judge Gregory Fain incorrectly denied LeBeau's request for a continuance during his 2013 sentencing hearing based on the newly discovered video.

LeBeau's 12-year sentence was part of a June 12, 2013, plea agreement in which he pleaded no contest to felony charges of gross vehicular manslaughter while intoxicated, hit-and-run causing death and injuries, and drunken driving.

At his sentencing hearing in August 2013, a teary-eyed LeBeau, then 43, told Donovan's family members he was sorry for causing them so much pain and asked them to forgive him.

"I wish I would have seen him. I wish I would have stopped," he said.

Donovan's tearful father accepted the apology. He later thanked LeBeau for his remorseful words about Donovan and his family.

Before he was sentenced, LeBeau gave a blow-by-blow account:

He said he was driving home from Bass Lake, where he drank beer and swam. He was westbound on Shepherd at 9:11 p.m. when "there was a collision that I never saw."

It was dark and the crosswalk was not well lit, he said. "I saw nothing. I did not brake. I did not swerve."

He said he was driving the speed limit -- about 40 mph -- when he felt something hit his car.

"It felt like a cannon ball just dropped from the sky," he said. "I did not stop right away because I panicked. I feared for my own safety."

He said he drove around the block with his windshield damaged and returned to the scene in six minutes.

"I was distraught, scared," he said. "There was never any intent to run or hide."

He said he didn't call 911 after he returned to the crash site because he heard sirens and saw police arriving.

"I stood by my car praying in a bewildered state, still not knowing who or what I hit," he said.

When police approached him, LeBeau said he told officers he was the driver involved in the accident and that he had been drinking. He said police told him a boy had been hit.

Looking at Donovan's father, LeBeau said, "as God is my witness, I did not know or feel anything under my car."

Nuttall believes that the collision re-creation evidence, and the fact that the city settled and changed the road, gives LeBeau solid legal grounds to withdraw his plea. The evidence also could convince a jury that LeBeau's actions might not have been the true reason for the deadly collision.

According to Nuttall, the video clearly revealed "a fatal design flaw at the crosswalk where the accident happened."

The flaw, Nuttall said, "created a dangerous condition such that any driver using reasonable care while traveling on Shepherd Avenue at or below the speed limit of 40 mph would be unable to perceive and avoid bicyclists and pedestrians."

At minimum, Nuttall said, the new evidence would have been important to know during plea negotiations.

"The new evidence establishes that LeBeau entered his plea based upon mistake, ignorance, inadvertence or some other factor that demonstrates overreaching," Nuttall says in the motion.

If the plea is withdrawn, LeBeau faces up to 26 years in prison if convicted by a jury on all counts.

Pablo Lopez: 559-441-6434, @beecourts

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