Carlos Fierro's passenger will go to trial on charges of vehicular homicide and leaving the scene of a fatal accident, although his chances of being convicted appear slim.

State District Judge Michael Vigil ruled that prosecutors established probable cause to charge former state police Sgt. Alfred Lovato with the same counts Fierro faced during his trial in September and October — but just barely.

"I don't know that you're going to survive directed verdict without other evidence," Vigil warned special prosecutors Donna Bevacqua-Young and Alfred Walker. "You barely made probable cause on the evidence presented here."

A directed verdict occurs during trial when a judge determines that prosecutors have not proven the charges against a defendant, and rules the defendant not guilty before the jury debates the case.

Vigil said Bevacqua-Young only established probable cause — a relatively low threshold compared to the criminal standard of beyond a reasonable doubt — against Lovato as it relates to a recent Court of Appeals decision known as state vs. Marquez. In that case, the Court of Appeals upheld the state's ability to charge a passenger in a car driven by a drunken man who plowed into another vehicle and caused two deaths and five injuries.

The passenger in the Marquez case encouraged the driver to drive and purchased more alcohol, which the two men drank in the car before the crash. That evidence of "shared conscious wrongdoing" must be present for the case to proceed, the appeals court decided.

Vigil said he would allow Lovato's case to join the Marquez case — which is to be taken up by the state Supreme Court — as an interlocutory appeal because if the highest court in the state reverses Marquez, it would nullify the Lovato case as well. Lovato's case would not be adjudicated until the Marquez case is decided by the Supreme Court if Lovato decided to appeal.

However, Lovato's attorney, Sam Bregman, said after Monday's hearing that he and his client decided to forgo the appeal and want to take Lovato's case to trial as soon as possible. That's because Lovato cannot get a job until the case goes away, and he doesn't want to wait what will likely be months before the Supreme Court issues a decision, he said.

"I've already sent a letter to the judge to clear Mr. Lovato's good name," Bregman said. "This is an absolute waste of judicial resources to go any further with this."

Monday marked the second day of Lovato's preliminary hearing, although the first day took place Oct. 7. Fierro was convicted of vehicular homicide a few days before the first hearing for striking and killing William Tenorio, 46, of San Felipe Pueblo, as he crossed Guadalupe Street just before 2 a.m. Nov. 26, 2008.

Tenorio — a local DJ and father of three — died later that day of injuries sustained in the crash. Fierro was sentenced to seven years in prison Friday.

Bevacqua-Young told the judge that Lovato "wasn't just a passenger that evening." He initiated the plans to go out drinking with Fierro, shared a lot of alcohol with Fierro over the course of the night and willingly got into Fierro's car several times during the course of the night, she said.

The prosecutor also faulted Lovato for not preventing Fierro from driving, and said he should be held to a higher standard because he was a police officer at the time of the crash.

Bregman scoffed at the premise.

"The prosecution apparently believes that different law applies to police officers," he said. "They're stretching this way beyond the law."

Of the multitude of witnesses called Monday and Oct. 8 — most of whom testified at Fierro's trial and his preliminary hearing — none presented any information that Lovato encouraged Fierro to drive, Bregman said. According to the Marquez decision, mere presence is not enough to convict a person for aiding and abetting, he said.

Bregman later said that prosecutors were attempting to set "a terrible precedent." If the Legislature wanted a law dictating that a passenger is guilty of the same crimes as a drunken driver, they'd surely have done so already, he said.

"The public has a right to know the definition of a crime," Bregman said. "And right now, I don't think the public knows what can or can't be done."

Further, Bregman reiterated claims that Lovato's case is an example of "malicious" and "vindictive" prosecution — a point he said was backed up by Bevacqua-Young's repeated claims that Lovato be held to a higher standard because he was a cop.

Bregman said he hopes to take the case to trial within six months.

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.