Daily Post Staff Writer

Lawyers have accused a Mountain View police officer of lying about his police report that was used to charge a father and a babysitter in the drowning of a 9-year-old boy at an apartment complex pool, court records show.

Officer Pablo Donato allegedly misrepresented a statement from the boy’s mother, Janet Gonzalez, to give the father and babysitter the impression that they were criminally negligent, Deputy Public Defender Aaron Jaques said in a motion.

The father and babysitter – Pedro Rivera, 43, and Rocio Berberli Ochoa, 26 – face a charge of child endangerment in the July 6, 2022 death of Ayden Noe Rivera-Gonzalez, 9.

A conviction carries a maximum prison sentence of six years, but Jaques tries to get the case dismissed in light of Donato’s alleged inaccuracies. Donato’s police report stated that Gonzalez once found her two children unattended on the street when she went to pick them up from their father’s apartment at 1895 Ednamary Way, where the older boy later drowned.

According to the police report, Gonzalez allegedly told Donato that she had waited at the apartment for nearly an hour before Ochoa arrived.

Ochoa is in a relationship with Rivera’s brother and was tasked with babysitting the boys while Rivera was at work.

Jaques, the public defender, said Donato’s body camera footage showed Gonzalez making a different statement than what he wrote in the police report.

According to Jaques, Gonzalez told Donato that she had picked up one of her sons from school, and teachers told her that the boy had run away from campus.

When she arrived at Rivera’s home, the other son opened the door and Ochoa walked out of the bathroom a few minutes later, Jaques said.

“At no time did Ms. Gonzalez state that she saw her children playing in the street or that they were left unattended in the home for an extended period of time,” Jaques said.

Why did the officer say that?

Donato “materially changed” what Gonzalez told him to “better fit the narrative” that Ochoa was criminally negligent in watching the boys, Jaques said.

Attorney Dan Barton, who represents Rivera, has filed a request to join forces with Jaques, who represents Ochoa.
Judge Thang Barrett will hear the motion June 21 at the Palo Alto courthouse.

Barrett will also consider a request from Jaques and Barton to reduce the charge from a misdemeanor to a misdemeanor.

Jaques is relying on a 1963 Supreme Court decision in “Brady v. Maryland” to get the case dismissed.

The “Brady” case requires prosecutors to give the other side any evidence favorable to the suspect.

That includes evidence that would cast doubt on someone’s testimony, Jaques said.

Donato testified on Jan. 5 that he had two conversations with Gonzalez, one of which was not recorded on his body camera, court records show.

Gonzalez attempted to correct the police record

Donato made no mention of Gonzalez’s attempts to correct the police report, Jaques said.

Gonzalez’s attorney, Kurt Seiburt, said in a letter to the court that Gonzalez called the police department twice a day for two weeks and visited in person, but she still couldn’t get a hold of Donato.

Gonzalez finally had a 20-minute conversation with Donato on Nov. 3, 2022, but he did not correct the police report afterward, Seiburt said.

Captain Scott Nelson declined comment on Donato’s behalf Friday.

Sean Webby, a spokesman for the Santa Clara County District Attorney’s Office, also said prosecutors did not want to discuss the case outside of court.

Deputy District Attorney Shanthi Rajagopalan is prosecuting Rivera and Ochoa.

Jaques said in an interview on Friday that the criminal charges are not supported by case law, and that it is “unfortunate” that the Public Prosecution Service is pursuing the case to this extent.
“Mrs. Ochoa is not a criminal,” Jaques said. “She did not commit a crime on the date in question. She was helping a family member and a tragedy occurred.”

Ochoa told police that Rivera-Gonzalez and his younger brother would leave as many as five times a day, and neighbors said they often saw the boys walking around without an adult.
Ochoa told police she was taking a shower around 4 p.m. on July 6, 2022, when the boys wandered off.

Painters tried to save the boy

They climbed over a chain-link fence and then Rivera-Gonzalez went into the pool for toys, police said.

The younger brother was the only one who saw what happened. He got help from two painters – Alejandro Marmolejo and Jose Fajardo – who worked nearby.

Marmolejo and Fajardo jumped the fence, jumped into the pool and pulled the boy’s body six feet under water, Sgt. Roberto Medina testified in January.