Mistrial in Hit and Run Case Leaves Unanswered Questions

Created: 22 March, 2018
Last update: 20 April, 2022

By Alberto Garcia

A second jury has deadlocked in the case of a DUI hit and run accident that has left a six year old boy with potentially life-long injuries.

Judge Stephanie Sontag declared a mistrial on Monday after the jurors explained they were unable to reach a unanimous verdict on their third day of deliberations to either convict or acquit the defendant, Constantino Banda, in three counts related to the May 6, 2017, accident.

The jury’s foreman told Judge Sontag the jury was deadlocked 7-5 to convict Banda.

Judge Sontag then asked each juror is they thought a unanimous verdict could be reached if they continued to deliberate. Each juror responds that they didn’t believe they would reach a verdict.

This was the second trial of Banda, 39, after the first trial also ended in a hung jury. In that trial, the jurors deadlocked 8-4 to convict him.

The case reads like a crime drama show because the two legal sides argue vastly different theories of who was the driver of the truck at the time of the accident.

On the day of the accident, Banda and his co-worker, Jorge Adame, drank several beers together before heading to watch a televised boxing match at a local restaurant. During their time at the restaurant, both men admit they drank between five and eight beers a piece.

A few hours after they arrived at the restaurant, Banda’s wife also arrived with a female friend. The Bandas, who have four children, had been separated for a few weeks because of trouble in their marriage.

Sometime after the boxing match, the two men left the restaurant and Banda got into a fight with a man that had been talking with Mrs. Banda. During the fight, Banda received a gash on his forehead, a large cut on his lower back, bruising on his face, and several cuts and scratches on his chest, back, and arms.

After the fight, Banda and Adame left in Banda’s truck. Surveillance videos from the area show Adame was driving the truck and Banda was in the passenger seat.

Seventeen minutes later, a 911 call reported a car accident where a pickup truck crashed into a Honda Accord sedan, causing injuries to a young boy. The family was returning from Disneyland and was only blocks from their home when their car was hit by a truck that had run a stop sign at a three way intersection.

The truck had fled the scene of the accident. The entire front grille and one headlight from the truck were found at the scene, indicating it was a Chevrolet.

Border Patrol agents were the first to respond to the accident and then fanned out to look for the truck.

Approximately 30 minutes later, Border Patrol agents found a Chevrolet truck parked on a side street less than a mile from the accident. The truck was missing its grille and driver side headlight, had extensive damage to the front end, and the driver side front tire was shredded.

The agents pulled two men from the truck, and found Banda in the driver’s seat and Adame in the passenger’s seat.

During interviews with police on the night of the accident and the following morning, Banda consistently maintained he was drunk and injured after the fight so he didn’t drive. He said he fell asleep in the truck as Adame was driving. Banda alleges he woke up and found the truck stopped in the middle of the street so he moved it to the curb, but didn’t know any accident has happened.

At approximately 2:15 a.m. in the morning after the accident, nearly three hours after the 911 call, Banda took a breathalyzer test and he was found to have a blood alcohol concentration of 0.152, nearly twice the legal limit of .08.

A San Diego Police Department toxicologist and an expert witness for the defense both estimated Banda’s BAC at the time of the accident would have been between 0.172 to over 0.21, or up to three times the legal limit.

Two days after the accident, a San Diego Police detective concluded that Banda was the driver without interviewing Adame or reviewing any surveillance videos. It wasn’t until Banda’s wife went to the police station and reported that Adame was driving before the accident that police requested the videos and interviewed Adame.

At the first interview with Adame three days after the accident, detectives asked him about the events of the night of the accident. Adame said Banda was injured in the fight, but said Banda drove away from the restaurant. When asked if he drove the truck that day, Adame said he had never driven the truck at all.

When confronted with information that witnesses said he was driving that night, Adame reluctantly admitted he was driving the truck at first, but then said he and Banda switched seats before the accident.

During the trial, Deputy District Attorney Christopher Chandler argued that Banda and Adame switched seats before the accident, and offered pictures of Banda from the night of the accident showing a bruise and mark on his left chest that the prosecutor argued was left by the seatbelt on the driver’s side. Adame had no marks from any seatbelt.

Public Defender Juliana Humphrey used a certified accident expert to refute the seatbelt mark, arguing the truck’s onboard computer showed the accident was not severe enough to leave any mark, and added that neither the airbags nor seat belt pre-tensions fired during the crash. The expert disputed that the marks in the pictures could have been caused by a seatbelt.

Beside the marks on Banda’s chest, there was no other physical evidence to help prove which of the two men was driving at the time of the accident. Both men gave conflicting stories of when and where they switched seats, and both lied to police about various aspects of their stories.

Banda and Adame are both undocumented immigrants and neither had a valid California driver’s license. Some media stories have claimed Banda had been deported 15 or 17 times before the accident, but records only show two deportations. Other interactions with Customs and Border Protection seem to be voluntary returns at the border, meaning he was likely just turned away at a border crossing for lack of proper documentation.

A hearing will be held Friday, March 23, to determine if Banda will be tried again. The District Attorney’s Office must decide whether to try the case for a third time. If they decide not to pursue the case, Banda could still face federal charges for being in the country illegally.

Adame was offered immunity from prosecution for driving without a license and driving while under the influence of alcohol in exchange for testifying against Banda. Adame has been in the country legally on a temporary work permit during the trial. It is unclear what will happen with Adame after the trial is concluded.