No Prosecution In P.B. Bar Fight

San Diego — Play armchair district attorney a moment. Before you lies the case of 26-year-old William "Bill" Dolan. On February 12, 2005, Dolan goes out barhopping with some friends and acquaintances. The group numbers about eight. After a couple of other stops, the group arrives at the Open Bar at 4302 Mission Boulevard in Pacific Beach sometime around 11:00 p.m. According to witness statements in the police report, members of Dolan's group exchange unpleasant words with an Oceanside man named Gerald Tovar, who is sitting with his wife at a nearby table. Around 12:30 a.m., Dolan and some of his group are leaving the bar to catch a cab home when Darren Dhont, one of Dolan's party, and Tovar get into an angry shouting match. Tovar is standing inside the bar's gated patio. Dhont is on the sidewalk. A four-foot wooden fence separates them. Dolan walks up to the arguing pair. According to witnesses, including two Open Bar bouncers, the argument ends when Tovar seizes a nearby beer bottle and smashes it over Dolan's head, knocking him to the ground. Tovar then grabs another bottle and hits Dolan's roommate, Sean Washington, with it. Washington falls to the ground bleeding from his head.

At this point, Open Bar security personnel restrain Tovar and escort him through the bar and out the back door. Meanwhile, Dolan hops over the wooden fence to restrain Dhont, who has jumped the fence in an attempt to get at Tovar. Four to five minutes later, Dolan is back on the sidewalk attempting to call 911 when Tovar, accompanied by a couple of Open Bar security staff, walks toward where Dolan and Dhont are standing. Tovar lunges forward and, the police report states, "stab[s] Dolan with an unknown object."

Dolan is taken to Scripps Memorial Hospital in La Jolla, where he undergoes surgery to repair a tear in the intestines. Police take Tovar into custody and book "him into County Jail for two counts of 245(a)(1)P.C. -- assault with a deadly weapon."

San Diego police detective Nick Borrelli, in his report on the incident, writes, "Based on the above investigation, I request Gerald Tovar be charged with three counts of 245(a)(1) P.C. ADW" -- assault with a deadly weapon.

Now, amateur D.A., it's time for your decision. Are you going to prosecute Gerald Tovar for three counts of assault with a deadly weapon? If you answered yes, you're at odds with the office of district attorney Bonnie Dumanis. Despite Detective Borrelli's investigation, the district attorney's office decided not to pursue the case. Asked why not, district attorney spokeswoman Gail Stewart would only say, "We don't comment on why we reject specific cases."

Asked if, in general, late-night bar fights are hard to prosecute because of the likely inebriation of combatants and witnesses, Stewart said, "No, we prosecute bar-fight cases all the time."

Dolan says he didn't get much of an explanation from the district attorney's office, either. "One investigator I talked to about a month after it happened said, 'Why are you so concerned? You weren't really injured.' Not really injured! I have 14 inches of scarring. My large intestine was 75 percent severed. The police report said it wasn't life threatening. Yeah, I wasn't going to bleed to death, but under certain circumstances there was a 50-50 chance of getting infection. And once you get an infection... So the fact that I didn't get infected and I made it through without any major complications, I was lucky. But if it had gotten infected, then I pretty much would have died."

Life threatening or not, the wound Dolan received at Tovar's hand was serious enough to warrant emergency surgery. Performed through a foot-long abdominal incision, the surgery was followed by eight days in the hospital. "I couldn't even eat or drink any fluids for the entire time I was in the hospital," Dolan recalls. "I was just on IV. Then even for the next three or four weeks, I was on a liquid diet because -- my intestines having been sewn back together -- I wasn't able to pass solid substance through there. And for the first month I couldn't walk at all. After I started walking, I was walking hunched over because they had to cut through my whole abdominal muscle from my ribcage all the way down to below my waistline because they didn't know where exactly my injuries were or how much internal bleeding there was. So they had to do an exploratory surgery in my abdominal cavity."

Dolan wasn't immediately aware that he had been stabbed that night at the Open Bar. He recalls the moments leading up to the stabbing. "They [Open Bar security] brought Tovar back to the sidewalk area approximately 12 feet from where I was standing. When I noticed that they were bringing him toward me, I began to back away. The security personnel were not restraining Tovar; they were just escorting him back to where I was standing by holding his arm. Once the security personnel released Tovar's arm, he continued coming toward me. I was on the phone trying to report the first two [bottle] incidents to the police. As Tovar got close, I lowered the phone and raised my hands up as I suspected that he might swing at me. I wanted to protect my face and head if he were to do so. He did not swing at my face, but he swung at my abdominal area with a sweeping-type motion. When he came in contact with my abdomen, I lost feeling in the entire lower half of my body [except for] a sharp pinching pain and a tingling sensation. I looked down and saw that there was a six-inch tear in my shirt and that my undershirt was also cut. I lifted the two shirts and saw a three-inch jagged cut on my stomach and my intestines protruding from the wound about three inches. A minor amount of blood was coming out, but much intestinal fluid was leaking from the wound. I yelled that I'd been stabbed and then hit the ground trying to hold my intestines in."

Tovar's version of the event? He referred inquiries to his attorney. The attorney never called back. Detective Borrelli did not return calls either.

A possible obstacle to Tovar's prosecution is the fact that the weapon was never found. Dolan never saw it. Some witnesses, including Open Bar security worker Erik Moe, claimed they'd seen Tovar throw something in a Dumpster across the street from the bar shortly after his second attack on Dolan, though they couldn't say what it was. In his report, Officer J. Maud of the San Diego Police Department wrote, "I checked inside the Dumpster and found that it was partially full of broken bottles and trash. I could clearly see that there was no knife inside. I checked under and around the Dumpster but did not find a knife or broken bottle with blood on it."

With permission from Tovar and his wife Connie Tovar, who was at the bar that night, police then searched Tovar's Ford Expedition. "I conducted a search of the Tovars' vehicle but did not find any evidence of the crime," Maud wrote. "I began to search the area for any weapons or any other additional evidence from the incident. I started my search at the east end of 700 Thomas Avenue and completed my search at the boardwalk on the west end of the block. I did not find any evidence."

During the weeks following the incident, Dolan expected to get a call from the district attorney's office requesting his cooperation in prosecuting Tovar. The call never came. So he called them. "I told them, 'I am pushing for an attempted murder charge, because my doctors have been saying that the guy stabbed me and then wrenched it to the side and pulled my intestines out, like it was a gutting.' I said, 'This guy tried to gut me and kill me. I want an attempted murder charge put on the guy.' They said, 'We don't think we can do it.' I said, 'Okay, well, charge him with the three felonies that the police are recommending, then.' And they said, 'We have to continue to look at this.' That was nine or ten months ago."

Dolan, now a law student in the Bay Area, says he considered a civil suit against Tovar. "But lawyers I've spoken to don't want to touch the case because in a civil action [Tovar's lawyers] could submit as evidence that the D.A. wouldn't pick up this case. If they don't press any charges against him criminally, it basically pulls the rug out from underneath any civil suit."