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Saying his hands were tied, a San Joaquin County judge on Monday rebuffed prosecutors seeking to add a murder charge (.pdf) in a Stockton child abuse case. Prosecutors had sought to add the murder charge after a preliminary hearing that, they say, persuaded them that Bryan Monge intended to harm his 8-month-old baby. In rejecting the move, San Joaquin County Superior Court Judge Bernard Garber cited the findings of the magistrate judge who had presided over the preliminary hearing, saying Judge Stephen Demetras has the final say. “When it’s the magistrate who says, ‘I find that there is no malice,’ isn’t that the end of it?” Judge Garber asked rhetorically in court. He added a hypothetical, explaining that even if he saw malice, he would still be bound by Demetras’ findings from the hearings in April and May. Garber also rejected defense arguments (.pdf) for dismissing the nine remaining charges against Monge, whose daughter Auralila died of a heavy blow to the stomach. According to defense attorney Benjamin Prince, Garber’s ruling showed the case was so overcharged that even the low standard of probable cause couldn’t carry the murder charge. “We’ve got a prosecutor who’s really gunning for Mr. Monge,” he said. Deputy District Attorney Claire Van Vuren had argued that the physical evidence � including lacerated internal organs in the abdominal area and a history of earlier injuries � was enough to establish implied malice. She attempted to differentiate Monge’s case from a 1980 ruling cited in the defense motion, Walker v. Superior Court, 107 Cal.App.3rd 884. In that case, the magistrate found insufficient evidence for a murder charge that was added after the preliminary hearing and held the defendant to answer on manslaughter instead. Prosecutors added the charge despite the finding, but it was dismissed by the court of appeal. In court Monday, Van Vuren stressed that the defendant in that case argued he had been provoked. “In this case,” she said, “we’re talking about a 4-month-old baby when the abuse began. There is no provocation, no heat of passion.” She also argued that Demetras may have forgotten all the testimony, since the preliminary hearing was spread over four days. To that, Garber responded, “That’s possible. It happens on occasion.” Still, the magistrate’s finding had to stick. But the dismissal doesn’t change the potential prison sentence Monge would serve if convicted of the remaining charges, according to Van Vuren. In fact, one remaining charge � assault resulting in the death of a child under 8 years old � carries a 25-to-life sentence, compared with 15-to-life for second-degree murder. Robert Himelblau, a San Joaquin County deputy DA and office spokesman, said he considered the Monday ruling a “Pyrrhic victory.” “The general intent crime is much harsher than the murder charge,” he said. “And it’s easier to prove because you have to prove intent with murder.” Even so, Prince said, the ruling gives the defense a “psychological benefit” by preventing the word “murder” from being thrown around the courtroom. The trial is scheduled to begin Oct. 29.

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