An appellate panel has ordered the re-sentencing of a police imposter convicted of abducting and sexually assaulting a woman and attempting to kidnap another woman outside of a Fullerton bar, ruling that a judge should have considered the defendant's post-traumatic stress disorder.
Nelson Mauricio Lunaty Garcia's convictions on the sexual assault, kidnapping and attempted kidnapping were upheld in the ruling, which was handed down Thursday by a three-justice panel from California's 4th District Court of Appeal.
The appellate panel did, however, dismiss four misdemeanor assault counts involving one of the victims due to a lack of evidence, according to the ruling written by Justice Thomas Goethals.
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Garcia, 36, was sentenced in September 2017 to 32 years to life in prison for posing as a police officer outside the InCahoots nightclub, 1401 S. Lemon St., on Sept. 2, 2015, to kidnap and sexually assault one of the victims and attempt to abduct another woman, who got away before she could be coaxed into his car.
One of the victims worked at the club and was going home early because she felt ill when Garcia approached and asked if she had been drinking. She said she had not been drinking and refused his offer of a "police escort."
A short time later, the second victim emerged from the bar, got in her car and acknowledged to Garcia she had been drinking when he approached her. He bound her with zip-ties, put her in his car and drove off to another location, where he sexually assaulted her.
A week later, that victim, who did not immediately go to police, told her brother and a friend what happened and they returned to the nightclub, where they spotted Garcia in the parking lot and called police.
The appellate panel rejected arguments from the Attorney General that Orange County Superior Court Judge Jonathan Fish was aware of the defendant's military service and PTSD at the time of sentencing.
Fish considered the defendant's military service as a mitigating factor in sentencing, according to the ruling.
"But the court then indicated it did not believe it was required to take Lunaty's military service into consideration as a mitigating factor or that it was required to also consider the issue of PTSD as a separate mitigating factor," Goethals wrote. The panel found that Fish "erred by failing to consider Lunaty's PTSD at the time of sentencing," and also rejected the AG's argument that re- sentencing would not make any difference.
Goethals wrote that the justices "cannot say it would be futile to remand the case to the trial court with directions to consider the fact Lunaty may be suffering from PTSD as a mitigating factor in sentencing. Of course, we express no opinion regarding whether the court's consideration of that factor should alter its sentencing decision."