After Shooting of Officer, Judge Rues a Bail Decision

An Orange County judge known as “Maximum Bob” expressed regret Tuesday for lowering the bail of a three-strikes felon who, while freed from custody, allegedly shot and seriously wounded a Santa Ana police officer four days ago.

“If I’d have known when I made the decision that this clown would shoot a cop, I’d have considered shooting him right then,” said Orange County Superior Court Judge Robert R. Fitzgerald.

Fitzgerald, who has been criticized by police officials for his decision, said he agreed to lower bail for Fernando Gonzales, 28, because the defendant was in intense pain and needed medical treatment for a gunshot wound he suffered trying to escape police after robbing a Santa Ana bank in 2001.

Gonzales, of Santa Ana, had already pleaded guilty and was awaiting sentencing at the time he made bail, which the judge had lowered to $50,000 from $150,000.

“I can certainly understand how everybody feels,” Fitzgerald said. “An officer’s been shot by somebody who should have been in prison. It’s just one of those horrors of the business we do. This happened. We can’t do anything about it.”

Gonzales remained hospitalized Tuesday with four gunshot wounds and could not appear for his arraignment. His next court appearance is scheduled for Feb. 21.

The wounded officer, who has not been identified, is expected to survive, authorities said.

Still, law enforcement officials throughout the county have voiced anger at Fitzgerald’s action.

“It’s outrageous,” said Corey Glave, lawyer for the Santa Ana Police Officers Assn. “I don’t understand the thinking. I don’t see any reason why he should be allowed back on the streets. Everybody is wondering, ‘How?’ ”

Sent 11 to Death Row

That Fitzgerald is the target of the leniency complaints has surprised prosecutors and defense lawyers who have argued cases before him. Fitzgerald, they say, has a reputation as an extremely tough judge -- one who has sent 11 people to death row.

Nicknamed “Maximum Bob” by Orange County defense attorneys, Fitzgerald has a reputation among state prison inmates for dishing out tough sentences. Two years ago, he sentenced an Anaheim gang member to 475 years in prison for a series of shootings and robberies.

“This man is a tough and often dreaded sentencer,” said Michael P. Giannini, director of the Orange County Alternate Public Defender’s Office. “The thought of him in any way being considered a light sentencer makes me say, ‘Whoa.’ That is truly ironic and wrong.”

Gary Pohlson, a private criminal defense lawyer and former prosecutor, agreed. “I had a case in front of him recently, and my client was panicked,” the attorney said, adding that the judge is “almost harsh.”

However, while Fitzgerald is known as friendly to law enforcement and tough on felons, he would sometimes surprise prosecutors and delight defense attorneys with his decisions, said Brent Romney, a criminal law professor at Western State University College of Law and a former Orange County prosecutor.

One such case involved the trial of a woman who ran over her newborn son with the family car while suffering postpartum depression. A jury found her guilty of second-degree murder. But Fitzgerald set aside the verdict and ruled that the mother had been insane at the time of the killing and therefore was not responsible for her actions.

“Some cases would have a very strong impact on him, and they might affect him more so than other judges,” Romney said. “He’d follow that feeling and surprise people. I think that’s what happened here.”

A Deal, a Break

In October, Gonzales, who also goes by Jose Alberto Maciel, agreed to plead guilty in exchange for a 30-year sentence for bank robbery and possession of a firearm. As a three-strikes felon, Gonzales faced the prospect of life in prison.

Before his sentencing hearing, Gonzales asked Fitzgerald to significantly lower his bail so he could seek private medical care for a bullet wound and other injuries he suffered while trying to escape police after the bank heist. The injury was to his arm, and Gonzales appeared in court wearing a sling and a grimace of pain, Fitzgerald recalls.

“He was in constant pain,” said the judge, who retired in 1996 but is now on assignment in Orange County Superior Court. “The defendant had injuries that caused him pain that could not be alleviated as expeditiously as he hoped before going off to prison. The bail reduction to $50,000 was with the expectation that he might not [be able to afford even] that.”

Fitzgerald agreed to lower the bail but told Gonzales that if he failed to return for a January sentencing, the judge would void the plea agreement and impose the maximum penalty.

In a court transcript of the proceeding, Gonzales’ bail reduction was part of an overall agreement and brought no objection from the Orange County district attorney’s office.

“So we’re in effect reducing your bail, letting you get the medical treatment that you need after you plead guilty and then we’re trusting you to come back to us for a very substantial term in prison,” Fitzgerald told the gunman at an Oct. 11 hearing, according to the transcript. “And if you get queasy on us and take off, you will be caught and brought back ... and you will go straight to prison for the rest of your life.”

Gonzales failed to return, and on Jan. 27 Fitzgerald sentenced him in absentia to 180 years.

On Saturday, Gonzales allegedly opened fire on a police patrol car that approached his car, which had been parked in the middle of a residential street in Santa Ana and surrounded by a crowd, police said. One officer was shot in the abdomen, just below his bulletproof vest. Police returned fire, seriously wounding Gonzales.

It is not unusual for defendants to ask for bail reductions to seek medical treatment outside custody, Romney said, but it is extremely rare for a judge to grant such requests after a defendant has pleaded guilty and awaits sentencing.

“If anything,” Romney said, “there’s an even greater incentive to flee. The whole purpose of bail is to ensure the defendant shows up and also to protect the public. The danger here is, he’s not going to want to show up for sentencing.”

Along with his 180-year prison sentence, Gonzales now faces two counts of attempted murder of a police officer with a number of legal “enhancements.” If convicted on both counts, he faces 100 more years.

Glave, the Santa Ana police union attorney, said the wounded officer is improving and can walk.

“The officer and his family would like to thank friends and fellow officers and the public for the outpouring of support,” Glave said. “He’s gotten calls, cards, flowers and visits from other officers.”

*

Times staff writer Mai Tran contributed to this report.