Camp Pendleton

A Feb. 4 trial was set Friday for the driver of a car that killed three children in a bicycle lane at Camp Pendleton.

U.S. Magistrate Edward Infante set the date after allowing Charles M. Smith, 20, to withdraw his earlier no contest plea to vehicular manslaughter.

Smith’s attorney, Mario Conte, argued that Smith’s former attorney, John Martin Jr., was unavailable to Smith after he pleaded no contest Sept. 23 to three counts of misdemeanor vehicular manslaughter.

Conte told Infante that Smith and his parents tried to reach Martin repeatedly for more than a month and finally hired Conte when Martin failed to show up for sentencing Nov. 6.

Martin testified the Bar Assn. told him that Smith had retained another attorney, so he thought it was unnecessary for him to show up. Martin said he advised Smith that the no contest pleas stemming from the May 2 accident were in Smith’s “best interest.”

Killed in the accident were Charmane Ostergaard, 6, her 4-year-old brother, Jeremiah, and Annabell Reyes, 6. Deborah Ostergaard, the 24-year-old mother of two of the children, was seriously injured.

Infante ruled that although he found no incompetence by Martin before the plea, the attorney’s unavailability to Smith afterward was enough to entitle Smith to a trial.