The lawyer retained by former Española Jail guard Joey Montoya to represent him in his rape case has motioned to dismiss the charge, arguing the alleged victim wasn’t in custody at the time of the incident.
Under the section of the legal statute used to charge Montoya, 21, of Española, with criminal sexual penetration, the victim must be an inmate in a correctional facility and the suspect a person in a position of authority over him or her.
“Under the statute the inmate needs to be confined,” attorney Tony Scarborough said Tuesday. “She wasn’t confined.”
Montoya offered the 20-year-old woman a ride home from Española Jail Nov. 14 after she was detoxed for the night. He allegedly stopped on an unidentified dirt road in El Llano on the way to her house and raped her before driving her home, according to court documents. The woman told police she didn’t tell Montoya to stop because she didn’t know where she was and didn’t want him to leave her there.
Española Police Det. Bryan Martinez said the victim wasn’t restrained in handcuffs or shackles while she got a ride home. He said the case was charged that way on the theory that she was in custody until Montoya released her at home.
“She got into the car on her own free will,” Martinez said. “But (Montoya) was still on duty as a detention officer at the time and she was an inmate until he released her.”
Martinez said if the District Attorney’s office decides the situation doesn’t fit that theory of rape, the charge could be changed to a different theory.
Chief Deputy District Attorney Doug Couler said he hadn’t decided how to respond to Scarborough’s motion. He pointed out that the legal definition of “custody or confinement” includes “constructive custody,” which the law defines as effectively, but not literally, in custody, such as an inmate out on furlough.
No hearing has been scheduled on the motion. Montoya is currently free on bond.
Montoya’s mother, Joanie Montoya, said Tuesday her son is innocent and Española Police acted without fully investigating the incident. She said her son was called into city hall Friday to sign termination papers. Deputy Police Chief Raye Byford said Montoya’s termination was awaiting Acting City Manager Veronica Albin’s signature.
Jail Director Ted Garcia said last week that it is against jail policy for an officer to leave the facility while on duty to give an inmate a ride home in a personal vehicle. Montoya’s supervisor Joel Vigil, the only other officer on duty at the time of the incident, is on administrative leave because he knew Montoya was breaking the facility’s policy by leaving to drive the girl home.