CHULA VISTA, Calif. (CNS) - A retrial was ordered Friday for a man accused of driving under the influence in a hit-and-run crash that injured a young boy in San Ysidro.
In September, Constantino Banda Acosta, 39, was convicted of three misdemeanor charges for his role in the May 6 crash that sent 6-year-old Lennox Lake to the hospital with serious injuries.
Jurors found Banda guilty of misdemeanor charges of driving without a license, battery, and vandalism under $400. The jury was hung, however, on felony charges of hit and run causing death or permanent injury, DUI causing injury, and driving with immeasurable blood alcohol causing injury.
Banda was charged with hit-and-run, DUI and driving without a license in connection with the crash. Federal immigration officials said Banda has been deported from the United States at least 15 times over the past 15 years, most recently on January 18.
On Friday, a judge rejected a motion to dismiss the charges against Banda and stated a retrial would proceed. A Nov. 7 trial date was tentatively set.
The case and first trial
Banda was speeding west on Camino de La Plaza about 11:30 p.m. on May 6 in San Ysidro when he ran a stop sign at Dairy Mart Road and crashed his pickup truck into a Honda Accord carrying 6-year-old Lennox Lake and his parents, according to authorities.
Lennox, in a child safety seat in the back of the car, suffered a major head injury and is recovering.
The defendant fled the scene but was arrested about two miles away after Border Patrol agents spotted his damaged truck parked on a street, police said.
Banda's passenger, Jorge Adame Ariza, also an undocumented immigrant from Mexico, testified under a grant of immunity during the defendant's two-day preliminary hearing in June that he and Banda had a number of beers that night before the accident.
Adame said Banda got in a fight with a man outside a Chula Vista restaurant after Banda's wife and a girlfriend accused the defendant of puncturing a tire on their car.
Adame said he drove up in Banda's truck after the fight and put Banda in the passenger seat. After they drove away, Banda took over as the driver, Adame testified.
Banda's defense attorney argued her client was not behind the wheel at the time of the crash.
San Diego police Officer Michael Muniz testified that Banda's blood-alcohol content measured .151 and .152 percent -- the legal limit is .08 -- during two breathalyzer tests about 2:15 a.m.
After opening statements in mid-August, Lennox's parents spoke with 10News about their son's recovery. Ingrid Lake said "He's really vulnerable and emotionally fragile. He's been really easily upset lately; less joking. He doesn't talk about the accident without a tinge of sadness or frustration. A lot of bad memories."