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SJC-12579

               ANTONIO GARCIA   vs.   COMMONWEALTH.


                       November 26, 2018.


Bail.  Supreme Judicial Court, Superintendence of inferior
     courts.


     Antonio Garcia appeals from a judgment of the county court
denying, without a hearing, his petition for relief under G. L.
c. 211, § 3. Garcia has been indicted for trafficking of a
person for sexual services, deriving support from prostitution,
and, most recently, witness intimidation. On the Commonwealth's
motion, and after a dangerousness hearing in the witness
intimidation case, a judge in the Superior Court ordered that
Garcia be held without bail for a period of not more than 120
days pursuant to G. L. c. 276, § 58A. At the same time, the
judge set bail in the sex trafficking cases at $20,000 each, a
reduction of amounts that had been set previously. Sometime
later, Garcia sought a bail hearing, but the Commonwealth
objected on the ground that 120 days had not yet run on his
§ 58A detention. No bail hearing was held at that time. Garcia
subsequently filed his G. L. c. 211, § 3, petition, arguing that
the judge wrongly denied him release on his personal
recognizance. We affirm the judgment denying relief.

     After considering the indictments, grand jury minutes,
threatening text messages, a portion of a search warrant
affidavit, dockets for the sex trafficking cases, and Garcia's
own criminal record, the judge found by clear and convincing
evidence that no conditions of release would reasonably assure
the safety of persons in the community. This finding was based
on evidence of Garcia's use of violence and threats to control
women for his own financial gain and of his failure to abide by
                                                                   2


court orders and conditions of bail.1 Garcia has not shown that
any of the judge's factual findings were clearly erroneous or
that the judge otherwise erred or abused his discretion.
Contrary to Garcia's argument, it is clear that the Commonwealth
may rely on hearsay at a § 58A hearing. G. L. c. 276, § 58A (4)
("rules concerning admissibility of evidence in criminal trials
shall not apply to the presentation and consideration of
information at the hearing and the judge shall consider hearsay
contained in a police report or the statement of an alleged
victim or witness"). See Abbott A. v. Commonwealth, 458 Mass.
24, 35-36 (2010) (Commonwealth's reliance solely on hearsay
bearing substantial indicia of reliability at § 58A hearing did
not violate right to cross-examine witnesses). Garcia also
argues that one of the witnesses testified before the grand jury
without making a valid waiver of her constitutional rights.
Garcia "lacks standing to assert the witness's right[s] in this
regard." Commonwealth v. Lopez, 87 Mass. App. Ct. 642, 649
(2015), citing Commonwealth v. Peloquin, 30 Mass. App. Ct. 960,
961 n.1 (1991). Finally, Garcia argues that his counsel failed
to present evidence of an attack on him committed by a grand
jury witness; the Commonwealth represents that such evidence was
in fact before the judge. In any event, the fact that another
person may have attacked Garcia does not detract from the
judge's ultimate finding that Garcia cannot be released under
any conditions that would reasonably assure the safety of the
community. The single justice properly denied relief under
G. L. c. 211, § 3.2

                                   Judgment affirmed.


     Antonio Garcia, pro se.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


     1 We emphasize that nothing we say today is intended to
prejudge any issue in Garcia's upcoming criminal trial.

     2 In addition to its arguments that relief was properly
denied on the merits, the Commonwealth argues that Garcia's
request for a bail hearing was premature, as the 120-day
detention period had not expired due to excludable time. See
G. L. c. 276, § 58A (3) (excluding "any period of delay as
defined in Massachusetts Rules of Criminal Procedure
36 [b] [2]"). We need not decide this issue due to our
disposition of the case.
