An unauthorized immigrant who has been deported repeatedly will be tried a second time on charges of drunken driving and hit-and-run in a crash that seriously injured a 6-year-old boy in San Ysidro, a judge ruled Friday.
A Chula Vista Superior Court jury had been unable to agree last month on convicting Constantino Banda Acosta, 39, of three felony charges related to the May 6 collision.
Jurors did find Banda guilty of three misdemeanor charges of driving without a license as well as vandalism and battery that occurred outside an Egger Highlands restaurant before the crash.
Banda has been deported or allowed to return voluntarily to Mexico 17 times since 2002, according to U.S. Department of Homeland Security records.
He is accused of driving past a stop sign at Dairy Mart Road and Camino de la Plaza and broadsiding a family’s Honda Accord. The couple’s son, Lennox Lake, suffered major injuries, including a skull fracture. They were returning home from a day in Disneyland.
The pickup kept going, but Border Patrol agents found the damaged vehicle about two miles away with Banda behind the wheel, a prosecutor said in the September trial. An employee of Banda’s construction company, Jorge Adame Ariza, was in the passenger seat.
Adame testified that even though he was driving when the men left the restaurant, they stopped and changed places before the collision.
Banda’s attorney, Deputy Public Defender Juliana Humphrey, argued that Adame’s testimony was not trustworthy. He was in the country illegally, like Banda.
The jury divided 8 to 4 in favor of convicting Banda of felony hit and run causing injury, DUI causing injury and driving with a blood-alcohol level over the legal limit of .08 percent.
On Friday, Humphrey asked Judge Stephanie Sontag to dismiss those charges, arguing that a second jury would also likely deadlock after hearing the same testimony.
Deputy District Attorney Christopher Chandler countered that he could present some additional evidence not used in the first trial, and he could offer character witnesses on Adame’s behalf to try to show his credibility.
Sontag said she had not found Adame credible, but a jury could reasonably decide he told the truth about who was driving that night.
A new trial has been set for Nov. 7, but that date will likely be pushed back so attorneys have time to obtain and read transcripts from the first trial.