SAN JOSE — A North San Jose resident charged with the unprovoked shooting of an unarmed Black man walking in his neighborhood in October was abruptly remanded to jail this week after a judge decided that his alleged actions indicated behavior that could threaten the public if he remained free.
Mark Henry Waters, 66, has been charged with assault with a semiautomatic firearm in the shooting reported the night of Oct. 2 in a residential neighborhood off Piedmont Road. The charge is accompanied by gun and injury enhancements that could mean a maximum prison sentence of 21 years if Waters is convicted on all the allegations.
Waters, who is white, is also being investigated for possible hate crime charges related to the shooting, though none have been filed at this point, Deputy District Attorney Aidan Welsh said Tuesday.
The defendant was arraigned in a San Jose courtroom Monday on an amended criminal complaint. He had been out of custody on $100,000 bail since shortly after the shooting.
On Monday, Judge Kelley Paul sided with Welsh in remanding Waters to jail without bail; he was later booked into the Elmwood men’s jail in Milpitas over the objections of his attorney as well as family and supporters who attended court to offer character statements on his behalf.
Waters’ attorney, Jose Badillo, pleaded with Paul to allow his client to remain free, noting his absence of criminal history and standing in his community. Badillo also disclosed new information, which was not in the initial police reports, that Waters had experienced a car break-in a few days before the shooting in which his garage openers were stolen.
According to a summary of the court hearing, Badillo told Paul that Waters thought the victim might have been one of the culprits.
But Welsh said nearby home-security video shows that the 21-year-old man, who was staying in a neighboring house through Airbnb, never set foot on any part of Waters’ property and was simply walking to a nearby grocery store. Authorities say that when the man soon saw a gun pointed at him, he turned away and tried to retreat to safety but could not avoid Waters’ single gunshot, which hit the man in the leg.
“He’s going to the Safeway to get some udon noodles and juice. He just exits the front door and crosses the street, and as he begins to cross the street, the defendant already has a gun trained on him,” Welsh said. “Any claim (Waters) was fearful that the victim was committing a burglary cannot be explained by the video.”
“We have an innocent person just walking to the store who was shot as he was running away, with absolutely no provocation,” he added.
Waters’ attorney could not be reached for comment Tuesday.
After the shooting, San Jose police arrested and booked Waters, who was freed after posting bail. On Oct. 5, police obtained a gun-violence restraining order to temporarily seize Waters’ firearms while a court evaluates his fitness to have the weapons.
The restraining order, which led to the confiscation of eight guns, including the .40 caliber Glock believed to have been used in the shooting, remains in effect. Waters was formally charged Nov. 19.
Meanwhile, the victim, whose name is redacted in a public copy of the criminal complaint and who Welsh said has chosen not to speak publicly, continues to recover from his injuries. Welsh said the man was hospitalized then spent several weeks at a rehabilitative center, and still requires a wheelchair or crutches to move around.
Welsh said there is no timetable for if or when hate crimes charges could be considered or filed.
“It’s something my office takes seriously, and it’s a matter of intensive investigation,” he said. “The charges right now are a starting point, not necessarily the end point.”
However, the path to filing hate crime charges is steep in California. Prosecutors would have to be able to prove racial animus was present during the commission of an alleged crime — such as slurs being said — which could be difficult given that the shooting happened at night and there is no clear proof that Waters knew the race or ethnicity of the person he allegedly shot.
Waters is scheduled to next appear in court Dec. 22.
Source: www.mercurynews.com