A judge on Friday upheld felony charges and set a trial date for an East Bay man accused of threatening a mass shooting targeting Jews on an online message board. But he discarded two hate crime enhancements brought by prosecutors, finding no precedent for them as charged.
The Contra Costa County DA’s office had appended the hate crime tags to two felony weapons counts facing 25-year-old Ross Farca, arguing his motivation for purchasing and possessing illegal weapons at the time of his arrest in June of 2019 was to intimidate and assault Jews.
“The only reason Mr. Farca was building an illegal AR-15 assault weapon was to advance his plot to kill Jewish people when they came together to worship at a synagogue,” Deputy District Attorney Dana Filkowski argued Friday before Superior Court Judge John Cope.
In June of 2019 Farca, whose lawyers say suffers from autism, obsessive compulsive disorder and other mental illnesses, and who illegally joined the U.S. Army in 2017, posted a detailed scenario on a Steam message board about a mass shooting targeting Jews: “I currently own an AR15 semi auto rifle but I can buy/make the auto sear and get the M16 parts kit,” the post, meant for another Steam user, read. “What do you think of me doing what [Poway shooter] John Earnest tried to do, but with a Nazi unform, an unregistered and illegally converted ‘machine gun’ and actually livestreaming it with Nazi music?”
A user reported the post to the FBI, and upon executing a search warrant police say they found the rifle, along with ammunition, used and unused rifle targets, a Katana sword, and “Nazi literature” stashed in Farca’s bedroom.
Usually hate crime enhancements, which add between 1-3 years of prison time for felonies, are appended to crimes like assault or vandalism. In this case, prosecutors attached them to the weapons charges: the unlawful manufacture of, and possession of, an assault rifle.
Farca’s defense team argued that since the charges do not specify a victim, they are not eligible for hate crime enhancements.
“There needs to be a victim,” defense lawyer Ashley Bargenquast said Friday. “A person, an individual, a family or group that is specifically targeted.”
Farca’s defense, mounted by the private firm Tully & Weiss, had filed a lengthy motion to dismiss contending that all six charges should be dropped on the grounds that a preliminary hearing held over several days last year violated Farca’s due process.
Cope denied that motion, but sided with the defense on the hate crimes issue alone.
“Here’s my problem with the enhancements,” Cope said. “I’m finding that he did possess those weapons, and he did have that state of mind and intent to at the very least intimidate, scare, threaten or actually assault.”’
However “there are no cases interpreting this enhancement to apply to a crime that doesn’t have a victim,” he added. “And possession of a firearm doesn’t have a victim.
“Factually I’m agreeing with the [prosecution]” that Farca intended to intimidate or threaten, Cope said. “But legally I’m agreeing with the defense that you cannot charge that enhancement on these crimes.”
Farca still faces six criminal counts: the two weapons charges; a misdemeanor for violation of civil rights; and three felony charges for criminal threats, threatening a police officer and dissuading a criminal witness stemming from an October incident during which he allegedly threatened Concord police detective Greg Mahan during a probation search.
The trial is set to begin June 28 at Contra Costa County Superior Court. Farca remains in custody at the Martinez Detention Facility and is ineligible for bail.