Brian Surewood Murder charge dropped, looking at 4 MORE years in prison

Article by writer Mark Kernes on Brian Surewood’s plea from AVN.com

SUREWOOD MAY SPEND 52 MONTHS IN PRISON FOR 2007 "ROAD RAGE" CHARGES

 Brian Surewood, the 46-year-old veteran of more than 1,000 adult productions, pled "no contest" on Thursday afternoon to charges of vehicular manslaughter with the "aggravation" of leaving the scene of an accident.

The plea capped an incident that was front-page news in the Los Angeles area for several days, and led L.A. Mayor Antonio Villaraigosa to proclaim that Surewood and the other driver involved, Armando Ayon, "are going to jail for life."

According to published reports and witness testimony, Surewood’s red Camaro and Ayon’s black Maxima had been cutting each other off for the roughly two blocks between Balboa Blvd. and Amestoy Ave. westbound on Sherman Way, reaching speeds of over 50 miles per hour, when Surewood allegedly cut in front of Ayon and stopped short. For whatever actual reason, Ayon swerved into a line of parked cars on the north side of Sherman Way and struck a silver Daewoo, forcing that car into the rear of a Honda Civic, which then struck pedestrian Syeda Arif and her two children. When it was all over, Arif’s left leg had been severed, her 5-year-old son killed instantly, and her infant daughter thrown into a coma which reportedly persists to the present.

Several witnesses to the event testified at a preliminary hearing that stretched over two days in April and May of 2008, often telling contradictory stories of the incident, and Surewood’s accident reconstruction expert, Robert Ockey, a 20-year veteran of the Los Angeles Police Department, told the court that he could find no indication that Surewood had stopped suddenly at any point before Ayon hit the parked Daewoo.

Nonetheless, Superior Court Judge Leslie A. Dunn bound both Surewood and Ayon over on charges of murder, vehicular manslaughter and reckless driving, ruling that both defendants acted with "implied malice" toward the victims.

"The problem in this case was that we have a young child killed; we have an infant who’s in a coma still – I’m not positive about that, because the injuries really weren’t part of the defense; they were more part of the considerations on how to handle the case – and we have a young mother who lost her leg above the knee along with some very serious internal injuries," explained defense attorney Ron Miller, who took over Surewood’s case after the preliminary hearing had concluded. "We have totally sympathetic innocent victims and logically speaking, who among us would change lanes in front of a car that had been tailgating them? So if Brian did change lanes, he changed lanes to get away from this guy, from Mr. Ayon. Brian says he never changed lanes, and I tend to believe Brian because as we heard at the preliminary hearing, the estimated speed of Mr. Ayon’s vehicle was between 50 and 58 miles an hour. Now, to move over in front of a vehicle and stop, that’s a prescription for disaster. I mean, for Brian it would have been. Why would he have put himself in harm’s way?"

Indeed, Ockey had testified that if Surewood had stopped suddenly in front of Ayon, given the force of the impact on the Daewoo, Surewood’s car could not have avoided being hit by at least one of the other vehicles – probably Ayon’s, which after impact crossed three lanes of Sherman Way and came to rest in the center divider.

But Miller’s problem wasn’t the physics of the accident; it was the gruesome nature of the injuries sustained by the innocent bystanders.

"The consideration for Brian in this case really was, ‘Do you want to risk life in prison or do you want to do approximately three to four years more’ – five and a half years total time – which is nothing to sneeze at?" Miller explained. "I mean, from a lawyer’s point of view, it’s a great case to try if you could try it in front of impartial people who knew the law. But for a lay jury, and particularly in light of the fact that the whole Bangladeshi community, which understandably and thankfully for the victims have been huge supporters of the victims … have been screaming for the death penalty if they could get it."

So what Miller did on Friday was argue his motion to dismiss the murder charge against Surewood.

"I would say between the District Attorney and I, we submitted [to the judge] every single California case that had to do with this implied malice," Miller said. "Now, there were varying fact situations, but in Brian’s case, my argument was that murder did not apply because this entire incident started at Balboa and ended at Amestoy on Sherman Way. Assuming, arguendo, that they were traveling at 50 miles an hour at the low end; it’s less than two minutes from the first moment that Mr. Ayon and Brian Surewood laid eyes on each other, and during that period of time, I don’t believe any reasonable human being could reasonably have foreseen that the way they were driving would result in death or great bodily injury to another person. In closing my argument to the judge, I said, ‘Your Honor, if the court sustains the murder charge against Mr. [Surewood] in this case, the court is effectively throwing out gross negligence and ruling that any violation of the vehicle code that results in the death of another human being is murder,’ and I said, ‘Quite frankly, Your Honor, that scares me.’"

But to Miller, there were other important facets of the situation that militated against taking the case to a jury.

"It’s one of the great injustices that I deal with as a lawyer, and unfortunately that a lot of my clients deal with, that if they are middle class or poor in this economy, then they’re treated like homicidal maniacs, while wealthy people are treated with kid gloves, and it’s horrible," Miller opined, recalling that as he drove out of the court’s parking lot, he heard a newscast stating that the driver of the Porsche that had been involved in the auto accident that had killed sports figure and clothing magnate Charles "Mask" Lewis was being charged just with vehicular manslaughter rather than murder.

"It wasn’t too long ago that another celebrity was involved in an accident while intoxicated, killed his passenger, and he also was only charged with drunk driving and vehicular manslaughter," Miller continued. "It’s like the old joke, though it’s not funny: If you have a big dick, you don’t need a Porsche. In this situation, if you have a big dick, you get charged with murder instead of manslaughter under a similar fact scenario."

And "big dick" was the key to the other factor that Miller considered.

"One of the things I weighed over as chief defense counsel was his occupation," Miller revealed. "In considering all aspects of the case, including selecting a jury, do I bring it out? Do people recognize Brian? He’s a Hall of Famer; his face is all over [Digital Playground’s] Pirates, and people do watch porn, and I think people have a preconceived notion of what an male adult performer is, just as they do a female adult performer, and that’s that male adult performers, all of us, are just oversexed dogs, just like the girls are all sluts. So even a fan of porn is going to go, ‘This guy’s such a rogue anyway, he’s not going to let some 19-year-old kid beat him in a dispute on the streets, and may very well have said to hell with everybody.’ I believe, from my experience, that law enforcement and the system in general, the criminal justice system, is far less compassionate to people in the industry than to other people."

"I’ve been on countless sets with Brian over the years," Miller, who’s performed in several hardcore movies, recalled, "and I’ve always felt that Brian was a kind and gentle man. I’ve never seen Brian lose his temper on a set, even on those days that all of us performers have had, where the day is endless and our scene never seems to come around and everything goes wrong – I’ve never seen Brian angry. He’s always been a gentleman to everybody. He treats the girls better than a lot of male performers, but he’s always been nothing but kind and courteous to all other performers and to producers and directors as well. Everybody I knew not only liked shooting Brian but I never heard a girl complain about working with Brian. He’s got a good rep in the industry, and as a person, he’s a good guy."

In any case, Miller won his motion, the murder charge was dropped, and Miller was able to work out what he feels is the best deal possible with the district attorney handling the case.

"The Deputy DA in this case is not only a fine lawyer, but also a gentleman and a zealous advocate," Miller opined. "His name is James Falco, and he did an excellent job, and as lawyers, I think both of us would have had a real good trial, but we were dealing with lives, and I think he showed that he had a great deal of compassion for the victims in not putting them through the trial, and I think he weighed this case for what it was really worth."

In the end, Surewood was sentenced to six years on the manslaughter charge, but the judge added an additional five years for the "aggravation" that Surewood had allegedly left the scene of the accident – even though Surewood continues to contend that he never was involved in the accident in the first place.

"If it hadn’t have been for leaving the scene of an accident, my guess is that we could have made a deal on this case for about four years total, which means he would have gotten out pretty much on time served," Miller figured. "But leaving the scene of the accident really hurt. Even if you’re not involved in the accident itself, you’re going to give a witness statement, you’re going to exchange your information with others at the scene and then you’re going to leave the scene. I think a prudent person that was that close would err on the side of caution, particularly if you thought you weren’t involved. If you have been involved somehow in the accident, does it really matter if you’re arrested right there on the spot or if you’re arrested several hours later?"

Miller pointed out that Ayon actually drew a shorter sentence than Surewood solely because he didn’t leave the scene, although because he pled "no contest" to vehicular manslaughter, reckless driving and causing great bodily injury, Ayon will likely spend seven or eight years in prison.

"Brian pled no contest, and he entered his plea pursuant to a case called People v. West," Miller explained. "It’s a special kind of ‘no contest’ plea not because he was admitting his guilt but because he felt it was in his best interests. California law provides for that type of plea. Brian denies any responsibility for the accident."

"I made a motion to have the judge recommend that Brian spend his time in a fire camp, and the judge made that recommendation," Miller continued. "Whether the Department of Corrections follows it or not, I can’t be sure. He’d be one of those guys that work on forest fires and clear out wooded areas, and Brian’s really looking forward to that because he hasn’t been outside in a year and a half."

While awaiting trial, Surewood has been classified in the county prison system as "K-10," which requires him to be locked up nearly 24 hours per day, seven days per week, and must be escorted everywhere by a deputy, even to meetings with his attorney. Miller described it as "a form of isolation, except he’s locked up with hardened criminals, which Brian certainly isn’t."

"Our hopes are that that’s where Brian will be classified [at the fire camp], and also while the time that he has remaining to serve is about four years, four months, maybe four years, three months, there’s a substantial likelihood, because of prison overcrowding, because of the federal mandate of thinning out the prison population in California, that he’ll be released in three years."

"Brian is just an outstanding person, and I’m thankful that Brian will be out of custody before he’s eligible to get an AARP card."

Miller noted that there will be a "restitution hearing" scheduled in a few months, although Surewood is reportedly penniless, and Miller has been handling the case at a greatly reduced fee.

"Not only doesn’t he have the money, but the insurance carriers have already paid out a great deal of money," Miller said. "I don’t know what else they think they can take from him."