Murder conviction in bike death Murder conviction in bike death (October 07, 2005)

MV cyclist run down on Highway 9

By Jon Wiener

His attorney says he isn't, but in the eyes of the public and, more importantly, a jury of his peers, David Espino is a murderer.

A jury convicted Espino of second-degree murder and five other charges stemming from a hit-and-run collision that took the life of Mountain View resident Jim Dein and nearly killed his friend Ted Aberg of Palo Alto on Highway 9 last February.

Espino was high on PCP at the time and driving without a license. He had several previous convictions for driving under the influence. Witnesses reported that he was driving erratically before he ran over the two bicyclists, slamming into other vehicles and then speeding around them. That was enough for the prosecution to prove that Espino knew that his behavior was dangerous, a prerequisite for the murder charge.

Mark Arnold, Espino's defense attorney, argued for a lesser charge of vehicular manslaughter. He said there is a statewide trend, marked by passage of a state law last year, that officially informs drivers that they risk a murder charge in the future.

"There's a vast difference between the malice required in a murder and the state of mind that exists when somebody commits these kinds of offenses," Arnold said.

Espino, a San Jose resident, is scheduled to be sentenced at a Dec. 9 hearing, where he will be facing a penalty of 15 years to life in prison. Arnold said the verdict would be appealed.

"I think the public is just fed up with people who drive under the influence and injure or kill people," Arnold said. He added that despite a drug addiction, his client has been able to maintain a fairly productive life.

"He works two jobs. He's got five kids, supports them, but he has been unable to shake his dependency on PCP."

Bicycle advocates, many of whom rode with Dein from time to time, were pleased with the outcome of the trial.

"It's comforting to see that the justice system is going to prosecute people who drive their vehicles irresponsibly," said Greg McPheeters, president of the Silicon Valley Bicycle Coalition and a Mountain View resident.

In a similar case that took the life of Mountain View Masters swim coach Alan Liu last year, a drunk driver pleaded guilty to charges of manslaughter and driving under the influence causing great bodily injury. Because the bulk of his sentence was specifically for the bodily injury charge, the 69-year-old driver, who had an expired license, might have received a lesser sentence had Liu's riding partner, Jill Mason, also died. In the end, he wound up being sentenced to eight years and eight months in prison.

(That sentence helped the judge in that case, Elaine Rushing, establish a reputation for being tough on drunk drivers, creating a stir when she was arrested this June on DUI charges.)
Only a third prosecuted

Espino's murder conviction is rare not just for the verdict and the charge, but the fact that it was prosecuted at all. McPheeters' organization published a study in 2003 that examined all bicyclist and pedestrian fatalities in Santa Clara County over a five-year period. Even when police determined the driver was at fault, charges were filed in only one out of every three incidents.

Dein's aunt, Susan Matheson, said she believes Espino is guilty of murder, but also that he's a tragic figure, shackled with the burden of the decisions he made.

"I don't believe that he is an evil person," she said. "I believe he's a good person that had a terrible weakness, was not able to control it and caused terrible damage with it."

Matheson and her children, who came from out of town to watch the trial, spoke to Espino's relatives at the end of the trial. The families exchanged sympathies for what each was going through.

"It is a situation in which there are no winners," Matheson said. "The trial happens and justice was certainly served. That's a good thing. It just sort of makes me realize that this does work, and that's important. But when all is said and done, my nephew is still dead."

E-mail Jon Wiener at jwiener@mv-voice.com

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