LAS VEGAS (KTNV) — The two teens accused of intentionally hitting and killing retired Bell, Calif. police chief Andy Probst were back in a Clark County District Court on Tuesday morning.
Jesus Ayala, 18, and Jzamir Keys, 16, appeared before Judge Jacqueline Bluth.
The hearing was supposed to be on a motion filed by Ayala's attorney, David Westbrook, who argued Ayala's felony murder charges shouldn't include elder abuse.
Westbrook argues there isn't enough evidence to support the State's theory that Ayala willfully intended to cause harm to a person 60 years of age or older, and "the legislature did not intend for every battery on a person over 60 that results in death to constitute first-degree murder" when they codified elder abuse in Nevada's criminal code.
He says the elder abuse enhancement was intended to penalize "caretaker crimes" against people over 60. In its opposition to that motion, prosecutors argue "the willful infliction of pain or injury on an older person is a valid predicate felony for the purposes of the felony murder rule and is not dependent on a caretaker type relationship."
Prosecutors also wanted Judge Bluth to dismiss the argument on procedural grounds, arguing it was not filed properly.
Westbrook told Bluth in court Tuesday he will file a writ of habeas corpus, or a petition challenging the charges of the original indictment.
Earlier this month, Bluth granted a motion to try Ayala separately on charges related to a stabbing case the State claims he was involved in months before the hit-and-run that resulted in Probst's death.
"Out of an abundance of caution, I can just file this as a petition for writ of habeas corpus, thus taking away any possibility of a procedural issue," Westbrook said.
Bluth said she did not find any "procedural issue" with the current filings, but she does not have a problem with Westbrook filing a petition.
Westbrook said he plans to file the motion on Monday. The teens are scheduled to be back in court by July 16.
