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Nevada County judge throws out kidnap charge in home invasion case

Michael Diaz

A Nevada County judge found enough evidence to hold the sole remaining defendant in a home invasion case on charges of robbery and first-degree burglary.

Judge Linda Sloven dismissed a kidnapping count, however, because she found the action of moving the victim actually decreased his risk because it allowed him to escape.

Michael Diaz, 47, was arrested along with Steve Ray Rhodes, 28, and Shawn Turnage, 26, in the Dec. 11 incident on Grizzly Trail. Rhodes and Turnage have taken plea agreements that will net them six years in prison, and are set for sentencing today.

Diaz was not offered a plea and he is facing special allegations of a prior murder and kidnapping conviction from 1989 that will increase his potential sentence.

During a hearing in Superior Court Thursday, Sloven detailed the testimony from a Sept. 11 preliminary hearing for Diaz that led her to find insufficient evidence for the kidnapping charge.

Nevada County Sheriff’s deputies testified the victim was awakened at 2:30 a.m. by his barking dog, and found two men at his door who said they needed gas. They reportedly left after he told them he had none. About a half-hour later, the victim’s dog began barking again and he went to investigate.

Someone knocked him down from behind and held what he believed was a gun to his head. The two men from earlier and a third man took the victim to his garage to look for gas and then into his residence, where they tied his hands. The victim told responding deputies he remained in the living room for two to three hours while the robbers tried to break into a safe.

The three robbers eventually took the safe, $7,000 in cash and other items and made the victim help them move the stolen goods to their truck, Sloven said. The victim was eventually able to escape and call for help.

Sloven spent some time discussing kidnapping, which in California means moving a victim a substantial distance, using force or fear to do so. Diaz was charged with kidnapping in order to commit a robbery, and the judge said she needed to determine whether the kidnap — the movement of the victim — was incidental to the robbery.

Some elements that have been used to determine kidnapping are whether it increased the risk to the victim, whether it decreased the ability to escape or whether it increased the suspect’s ability to commit the crime, Sloven said.

Sloven noted the robbers moved the victim to and from the garage, a distance of about 150 yards, but added that movement decreased his risk because it allowed him to escape.

Diaz was set to be formally arraigned on Oct. 15. Deputy District Attorney Casey Ayer said after the hearing that she will file the complaint with all three charges and that it would be up to the defense to file a motion asking to dismiss the kidnapping charge at that point.

Contact reporter Liz Kellar at 530-477-4236 or by email lizk@theunion.com.

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