Mistakes may cause charge to be dropped

August 08, 2003 12:00 am

By AMY LINDBLOM

A Soulsbyville woman convicted of second-degree murder in 2001 could soon be free — not because she has been cleared, but because of legal snafus.

On Monday, Tuolumne County Superior Court Judge Eric DuTemple is scheduled to rule on a motion to dismiss the murder charge against Brenda Warne, 38. A jury in DuTemple's court in February 2001 convicted her of killing John Tocalino in July 2000 by bludgeoning him to death.

All along, Warne has contended she is innocent and that a former boyfriend was the culprit.

Now she is either going to get a second chance to prove she didn't kill Tocalino or be set free.

Warne has served 21/2 years of a 15-to-life sentence in the Central California Women's Facility in Chowchilla. But she is to be brought back to the Tuolumne County Jail, and will be in court for Monday's hearing.

There are two issues at hand in the Warne case:

• In February, the state 5th District Court of Appeals in Fresno overturned Warne's conviction. The higher court reviewed trial transcripts and ruled that DuTemple wrongly dismissed a juror during deliberations.

Francis Smith deliberated one day with fellow jurors but stood by her belief that Warne was not guilty, court records said. The other 11 jurors told DuTemple that Smith refused to deliberate further and the jury was therefore deadlocked.

The judge replaced Smith with an alternate, and Warne was convicted of second-degree murder six hours later.

But the appellate judges ruled that DuTemple should have declared a mistrial rather than replace Smith.

On May 23, Warne's case was returned to Tuolumne County Superior Court for retrial or dismissal — a decision the county District Attorney's Office was to make. In February, Tuolumne County District Attorney Donald Segerstrom said there was "no question we will retry her."

• According to California Penal Code, the court and the District Attorney's office had 60 days — or until July 23 — to ask for a new trial. But the District Attorney's office failed to refile new charges against Warne by the deadline. Segerstrom admits his office made this error.