A state District Court judge decided Thursday that probable cause exists to charge five former Robertson High School football players with raping and attempting to rape underclassmen with a broomstick last summer.

In addition, Judge Jim Hall upgraded all of the applicable attempted kidnapping charges against the five players — who are accused of assaulting fellow teammates at a preseason football camp outside Las Vegas, N.M. — to kidnapping. Hall dismissed some charges against four of the former players — who are all 16 or 17.

However, he ruled that probable cause supported all 19 charges against Michael Gallegos, identified by many witnesses and victims as being in possession of the broomstick at some point during most of the assaults. Gallegos also was the one who made the first threat with the broomstick.

Before ruling on each specific charge against each defendant, Hall explained his view on the one count of conspiracy that was filed against each defendant.

"There was a conspiracy of criminal sexual penetration across the board," Hall said, adding that he believes the five defendants were "acting in concert" with each other during the assaults.

In relation to the kidnapping charge, Hall explained that the evidence showed the young men restrained their victims before assaulting them, which he said fit the statutory definition of completion of the act of kidnapping, not attempted kidnapping. Hall said he expects to receive briefs from defense lawyers in the case detailing why they believe he doesn't have the authority to upgrade the charges against the former players.

Before Hall made the ruling, Joe Gribble, attorney for Marcus Gutierrez, told the judge he didn't think he had the authority to increase the charges from attempted kidnapping to kidnapping because it changed the nature of the counts against his client. Lawyer Steve Aarons, who represents Santiago Armijo, made a similar argument.

Hall said he didn't understand that argument considering both lawyers were already defending their clients on kidnapping charges in the case before he upgraded the attempted kidnapping counts.

Hall also downgraded one of the criminal sexual penetration charges filed against all five young men for their alleged role in assaulting a 15-year-old because the young man testified that he was never penetrated with the broomstick.

In general, Hall said he found the state's witnesses credible.

Thursday marked the third day of a preliminary hearing to decide if probable cause exists to charge the five. A sixth young man initially charged in the case, Jerek Padilla, admitted his guilt to criminal sexual penetration and conspiracy just before the hearing started Tuesday. He will be sentenced as a juvenile and will be expected to testify against the other defendants.

The group of six defendants — all juniors — allegedly attacked several sophomores and freshman, as well as one junior, at the Western Light Camp between Aug. 11 and 14. The incidents, originally deemed hazing, began after Gallegos and a sophomore began trash-talking about girlfriends and sisters. Gallegos told the sophomore to be quiet or he'd shove the broomstick into his buttocks.

A sexual assault nurse examined five of the victims in the case and found signs of anal penetration in three of them. The two others had red marks in areas around the anus but not inside, said the nurse, Tamarra Ortiz.

Five of the defendants were suspended from school, while a sixth was expelled. Head Coach Ray Woods and six assistants resigned Sept. 6.

Special prosecutor Henry Valdez has filed a notice saying he will seek adult punishment against the former players. However, the punishment won't be determined until any convictions. Adult penalties could result in long prison sentences, while the maximum juvenile sentence would keep them in state custody until the age of 21.

Hall asked the lawyers to check their schedules so he can soon set a trial date.

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

THE CHARGES

State District Judge Jim Hall determined that probable cause exists to charge five former Robertson High School football players with the following counts:

Santiago Armijo: Conspiracy, four counts of attempted criminal sexual penetration and four counts of kidnapping. Dismissed: two counts of CSP, two counts of kidnapping.

Michael Gallegos: Conspiracy, four counts of CSP, nine counts of kidnapping and five counts of attempted CSP. None dismissed.

Steven Garcia: Two counts of CSP, two counts attempted CSP, four counts kidnapping, conspiracy. Dismissed: two counts CSP, two counts kidnapping, two counts attempted CSP, two counts attempted kidnapping.

Marcus Gutierrez: Two counts of CSP, five counts kidnapping, four counts attempted CSP, conspiracy. Dismissed: one count each of CSP and kidnapping.

Lucas Martinez: Three counts CSP, five counts of kidnapping, three counts of attempted CSP, conspiracy. Dismissed: one count each of CSP, attempted CSP, kidnapping, attempted kidnapping.