Police officer accused of lying in report about pool death of boy, 9

BY BRADEN CARTWRIGHT
Daily Post Staff Writer

Lawyers have accused a Mountain View police officer of lying on his police report that was used to charge a father and a babysitter for the drowning of a 9-year-old boy at an apartment complex pool, court records show.

Officer Pablo Donato allegedly misrepresented a statement by the boy’s mother, Janet Gonzalez, to make the father and babysitter seem like they were criminally negligent, Deputy Public Defender Aaron Jaques said in a motion.

The father and babysitter — Pedro Rivera, 43, and Rocio Berberli Ochoa, 26 — are facing a charge of felony child endangerment for the death of Ayden Noe Rivera-Gonzalez, 9, on July 6, 2022.

A conviction comes with a maximum sentence of six years in prison, but Jaques is trying to get the case dismissed in light of Donato’s alleged inaccuracies. Donato’s police report said that Gonzalez once found her two children roaming unattended in the street when she went to pick them up from their father’s apartment at 1895 Ednamary Way, where the elder boy later drowned.

Gonzalez reportedly told Donato that she waited in the apartment for almost an hour before Ochoa arrived, according to the police report.

Ochoa is dating Rivera’s brother and was tasked with watching the boys while Rivera was at work.

Jaques, the public defender, said that Donato’s body camera footage showed that Gonzalez gave a different statement than what he wrote in the police report.

According to Jaques, Gonzalez told Donato that she picked up one of her sons from school, and teachers told her that the boy had run off from campus.

When she arrived at Rivera’s home, the other son opened the door, and Ochoa walked out of the bathroom a few minutes later, Jaques said.

“At no point did Ms. Gonzalez state that she observed her children playing in the street or that they were left unattended in the home for an extended period of time,” Jaques said.

Why did officer say that?

Donato “materially changed” what Gonzalez told him to “better fit the narrative” that Ochoa was criminally negligent when watching the boys, Jaques said.

Attorney Dan Barton, who represents Rivera, has filed a request to join in with Jaques, who represents Ochoa.
Judge Thang Barrett is scheduled to consider the motion on June 21 at the Palo Alto Courthouse.

Barrett will also consider a request from Jaques and Barton to reduce the charge from a felony to a misdemeanor.

Jaques is relying on a 1963 Supreme Court decision in “Brady v. Maryland” to get the case dismissed.

The “Brady” case requires prosecutors to give the other side any evidence that is favorable to the accused.

That includes evidence that would cast doubt on a person’s testimony, Jaques said.

Donato testified on Jan. 5 that he had two conversations with Gonzalez, and one of them wasn’t recorded on his body camera, court records show.

Gonzalez tried to correct the police record

Donato didn’t mention Gonzalez’s attempts to correct the police report, Jaques said.

Gonzalez’s lawyer, Kurt Seiburt, said in a letter to the court that Gonzalez called the police station twice a day for two weeks and visited in person, but she still couldn’t get a hold of Donato.

Gonzalez finally had a 20-minute conversation with Donato on Nov. 3, 2022, but he didn’t correct the police report afterwards, Seiburt said.

Capt. Scott Nelson declined a comment on Donato’s behalf on Friday.

Sean Webby, a spokesman for the Santa Clara County District Attorney’s Office, also said prosecutors wouldn’t discuss the case outside of court.

Deputy District Attorney Shanthi Rajagopalan is prosecuting Rivera and Ochoa.

Jaques said in an interview on Friday that the criminal charges aren’t supported by case law, and it’s “unfortunate” that the DA’s Office is pursuing the case to this degree.
“Ms. Ochoa is not a criminal,” Jaques said. “She didn’t commit a crime on the date in question. She was helping out a family member, and a tragedy occurred.”

Ochoa told police that Rivera-Gonzalez and his younger brother would leave as many as five times a day, and neighbors said they often saw the boys walking around without an adult.
Ochoa told police that she was taking a shower around 4 p.m. on July 6, 2022, when the boys wandered off.

Painters tried to save the boy

They climbed a chain-link fence, and then Rivera-Gonzalez went into the pool for a toy, police said.

The younger brother was the only one to see what happened. He got help from two painters — Alejandro Marmolejo and Jose Fajardo — who were working nearby.

Marmolejo and Fajardo hopped the fence, jumped in the pool and pulled the boy’s body from seven feet underwater, Sgt. Roberto Medina testified in January.