Battery Counts Against Athletes Dismissed After Witness Changes Story

After a key prosecution witness changed his story, a judge Thursday dismissed felony charges against two former athletes from San Dieguito High School in a May 30 brawl at an Olivenhain party.

The prosecutor immediately said the charges would be refiled as misdemeanors. And one of the alleged victims, who suffered two black eyes, a split lip and a dislocated jaw, said witnesses have been intimidated into silence.

After a short preliminary hearing, Vista Municipal Judge Harley Earwicker ruled there was insufficient evidence to order Erik Heipt, 19, and Lawrence Jeffery Penacho, 18, to stand trial on felony battery charges.

Deputy Dist. Atty. Tim Casserly indicated the charges would be refiled as misdemeanor battery.

Must Prove Force

In felony battery, prosecutors must prove that the force used was sufficient to cause great bodily injury. In misdemeanor battery, they need only prove that the defendant made contact with the victim that was unwarranted and uninvited.

The prosecution case dissolved when San Dieguito High student Frank Oesterheld, 17, testified that he did not actually see Penacho attack Chuck El-Ghoroury, nor did he hear Heipt talking about helping Penacho by restraining Brian Giovannucci.

Oesterheld, who was at the party, had told sheriff’s deputies that he saw Penacho hit and kick El-Ghoroury and then heard Heipt brag about helping him.

Asked by Casserly why he had changed his story, Oesterheld said, “I was pretty angry and I was pretty scared. And there were some misunderstandings and some exaggerations on my part.”

Outside the court, El-Ghoroury, now a freshman at UC Riverside, said witnesses to a series of North County beatings are afraid to step forward because the defendants are star athletes. Penacho, Heipt and Oesterheld are all wrestlers.

“These kids have to live in this area and see them (the athletes) every day,” El-Ghoroury said.

But Casserly said he knew of no intimidation of witnesses in this case.

Penacho’s attorney William Fletcher said that, at worst, the Olivenhain party involved a wrestling match between Penacho and El-Ghoroury.

“At best the evidence shows there was mutual touching but certainly not battery with serious injury,” Fletcher said.

Penacho had been accused of battering El-Ghoroury in a dispute over a girl. Heipt was accused of battering Giovannucci by stopping him from rescuing El-Ghoroury. All four were students at San Dieguito High at the time of alleged attack.

A 17-year-old student at San Dieguito High has already pleaded guilty in Juvenile Court to beating El-Ghoroury at the party. Prosecutors claimed that once the juvenile finished, Penacho took over and continued the beating.

El-Ghoroury testified that after being beaten by the 17-year-old, he does not remember anything, except going to the hospital.