San Diego

San Diego Police Chief Bill Kolender will not have to testify in pretrial proceedings in the Sagon Penn murder case, Superior Court Judge Kenneth Johns ruled Wednesday.

But the judge said his ruling doesn’t affect the possibility of Kolender having to testify at Penn’s trial, which is scheduled to begin Jan. 13. “That’s for the trial judge to decide,” Johns said.

Milton Silverman, the San Diego lawyer representing Penn, 23, who is accused of killing a policeman and wounding another, wanted Kolender to testify during a discovery hearing Friday. Silverman contends that the chief is aware of an investigation involving Donovan Jacobs, the wounded officer, that focuses on Jacobs’ alleged participation in para-military training and his wearing of a Nazi swastika while on duty in 1981.

The judge said that, if such an investigation exists--prosecutors claim it doesn’t--information about it could be obtained from officers other than Kolender.

Wednesday’s court action came during a hearing on legal motions made by Silverman in preparation for next month’s trial. Part of the hearing, which continues today, included rulings on eight of 20 subpoenas sought by Silverman that the district attorney’s office wanted set aside. Johns quashed five of the subpoenas, including Kolender’s.

Penn is charged with killing Officer Thomas E. Riggs, 27, and shooting Jacobs, 29, and Sara Pina-Ruiz, 33, who was accompanying Riggs in a ride-along program on March 31 in Southeast San Diego.