Judge Expected To Decide On Dropping Warm Sands Sex Sting Charges Today

A decision on whether charges should be dropped against 14 of the 19 men arrested in the Warm Sands-area sex sting is expected to be given today by Superior Court Judge David B. Downing.

Before Downing rules, the defense is grilling one more witness.

Detective Frank Guarino took the stand at 9 a.m.

At 10:40 a.m., both the prosecution and the defense rested their cases. Next are closing statements, followed by the judge’s decision.

KESQ’s Mike Daniels will be in the courtroom relaying information on Twitter. Follow @Kesq and @MikeDaniels for updates

The sting involving decoy police officers occurred over four days in June 2009 in a parking lot outside a Warm Sands resort that has a predominately gay clientele. The controversy surrounding inappropriate police behavior cost Palm Springs Police Chief David Dominguez his job and changed city policy concerning police operations.

Defense attorneys are claiming that the police department displayed selective enforcement and want two misdemeanor charges dropped, one of which would force their clients to register as sex offenders. The prosecution, however, contends that there was no discriminatory intent; rather cops were simply responding to complaints from the community about public sex.

Before closing arguments, the defense will call Palm Springs police Detective Frank Guarino to question him whether he erased the recording of Dominguez’s insensitive comment.

Operating a police surveillance camera during the sting, Guarino offered Sgt. Bryan Anderson the opportunity to delete his inappropriate comments. The tape records Anderson declining while saying, “what’s the worse that could happen?”

Anderson testified in court he didn’t want to erase the remark to prevent scrutiny of the operation.

Defense attorney Mark Foster, though, equated Dominguez’s slur to “a Watergate-type comment” and wants to find out if the police tried to cover up the chief’s remarks.

“The following night, (Guarino) is in the car with the chief of police and an implicitly worse comment is made,” Foster said to the judge. “Is it a leap to think Guarino made the same offer?”

Deputy District Attorney Earl Roberts told the judge the department “is not hiding anything” and that, since Dominguez admitted to making the remark, it doesn’t make a difference even if it were erased.

During his testimony last week, Dominguez admitted to using inappropriate language.

The defense is citing the comment as an example of the department’s selective enforcement.

“The top sets the tone and if you have the head of the department hurling gay slurs at potential subjects, I can see discriminatory intent,” defense attorney Roger Tansey said after Friday’s court session.

Dominguez said that he did not intend to be derogatory toward gays, but rather that he uttered them because he was shocked at seeing men perform sex acts in public.

“In 31 years, I’ve never seen anything like that in public … I was taken aback … and was offended about that occurring in public and it bothered me,” he said. “It was not directed at anybody, but it came out and it was wrong.”

Earlier in the hearing, Downing said Anderson’s comments were derogatory. The sergeant, though, said they were not made with that intent.

Anderson deemed the language “police humor” and said it was used as an “icebreaker” to relieve tension when he and a fellow officer were waiting for the sting to begin.

“It was not meant to be demeaning and it was not meant to demoralize anybody,” Anderson said. “It was an uncomfortable position and I was just trying to be funny.”

Anderson said, “Are you a (expletive)? Yes, sir. I am.” while observing a man, who was not committing a crime, walk by.

The defense also claims the fact the police department did not crack down on known public heterosexual sex at Knott’s Soak City Waterpark further shows selective enforcement.

“When you get a sworn declaration detailing lurid conduct in front of children, what do you do?” Tansey said outside the courtroom. “When it’s gay guys, you set up stings.”

In response to the defense team’s claims, Anderson said officers were not targeting gays.

“This has nothing to do with going after gay men,” he said on the stand. “This has to do with going after sex in public.”

Roberts offered a plea deal to all of the defendants earlier this month. The men would be allowed to plead guilty to misdemeanor lewd conduct, and the indecent exposure charge would be dropped so they would not have to register as sex offenders.

None of the defendants in the motion are likely to accept the offer, Foster has said.