5 indicted in downtown SR killing

<p>A criminal grand jury has indicted five Santa Rosa men in a 2006 killing in a downtown parking garage, a slaying that provoked community outrage about violent gang activity and concerns about the safety of innocent bystanders in the heart of Sonoma County.</p><p>Matthew Allen Toste, 32, was shot twice in the chest as he and his date walked with another couple inside the Seventh Street city parking garage just after midnight Dec. 3, 2006. Witnesses told police the assailants made sexually provocative comments to the women Toste was with and he was shot as he defended them.</p><p>The grand jury indicted the men in secrecy on June 5, according to prosecutors, who formally charged the men in court Thursday morning and unsealed the indictment.</p><p>The accused are: Joseph Kenneth Lopez Sr., 39; his son Joseph Kenneth Lopez Jr., 19; Paul Whiterock, 28; Nicholas Mejia, 30; and Raul Lopez-Granados, 20.</p><p>Authorities believe the younger Lopez shot Toste. He and Whiterock were arrested as suspects soon after the killing, but were released when the District Attorney's Office declined to file charges.</p><p>All five now are charged with Toste's murder, being gang members, conspiracy and sentencing enhancements that could lead to life terms in prison.</p><p>Lopez Sr., Mejia and Lopez-Granados were arrested June 10 and appeared in court Thursday. They are being held in the Sonoma County Jail without bail.</p><p>Lopez Jr. has been in custody in Stockton on a hold from the California Youth Authority for violating his juvenile parole, prosecutors said.</p><p>Whiterock remained in custody Thursday afternoon in Butte County after having been arrested Wednesday on the Toste murder warrant, a jail spokeswoman there said.</p><p>Both men were due to be brought to Sonoma County this week, prosecutor Rob LaForge said.</p><p>All five were scheduled to be arraigned on Monday.</p><p>Garage confrontation</p><p>Investigators said Toste, a single father and construction worker, and his friends were confronted by five men as they walked through the garage. After one of the women was grabbed by a man in the other group, words were exchanged, followed by punches.</p><p>Toste apparently landed a blow that knocked out Lopez Sr. The indictment alleges Lopez Jr. shot Toste twice. He died of two bullet wounds to his chest.</p><p>Many Santa Rosa residents decried the shooting as an indication that gang violence, which most typically targets other gang members and occurs in neighborhoods known for gang activity, was spreading into an area formerly perceived as safe and had claimed an innocent victim.</p><p>Despite the delay, the Toste family said it was relieved to learn about the indictments.</p><p>"Our family is grateful to the Santa Rosa Police Department and Sonoma County District Attorney's Office for their tireless work in building a case against Matt's murderers," said Toste's brother, Thaddeus Toste, in an e-mail. "We are united in our confidence in both organizations.</p><p>"Matt Toste was a great brother, son, father and friend. We are proud of him. Matt's murder was a senseless crime, and news of the arrests is welcome, and encouraging. We are united in our hopes and prayers that justice will be served."</p><p>Complex case</p><p>District Attorney Stephan Passalacqua said the delay in prosecution was because of the complexity of the case.</p><p>"We have expended considerable resources on this case and it has been our number one priority since day one," he said.</p><p>The 10-page indictment unsealed Thursday sheds little light on the specifics of what happened the night of Dec. 3, when it is believed all five of the defendants confronted Toste, his date, a cousin and his cousin's husband as they were headed toward a Seventh Street nightclub at about midnight.</p><p>Among the allegations are that:</p><p>Shortly before the shooting, the five defendants "talked about getting retaliation for a beating" Mejia had been involved in. It didn't describe the earlier incident, though it didn't involve Toste, police said.</p><p>The five drove to the parking garage, apparently in more than one vehicle, and together walked toward Seven Ultra Lounge, an upscale nightclub that opened in early 2006.</p><p>In some kind of confrontation, Lopez Jr. fired a semiautomatic pistol, killing Toste.</p><p>Whiterock helped Lopez Jr. flee police, knowing he had killed someone.</p><p>Convictions could mean lifetime prison terms.</p><p>Assistant District Attorney Christine Cook refused to disclose how long the grand jury had been convened or how many days prosecutors presented evidence.</p><p>Other sources said evidence gleaned in the 1½-year investigation was presented to a panel of 19 grand jury members convened in a Petaluma satellite office over the past several weeks.</p><p>The investigation</p><p>Investigators said gathering evidence was a huge task that drew resources from throughout the police department.</p><p>"There were certain times when the investigation seemed to be going very, very well and we'd get new information quickly, and other times where perhaps that wasn't the case," said Santa Rosa Police Sgt. Paul Henry. "Even when that wasn't the case, we were still doing things to push the investigation forward."</p><p>The investigation also led to charges in four other criminal cases, the most serious being a Nov. 16, 2006, attempted murder at a party in a room at the Fountaingrove Inn, during which a 23-year-old San Rafael man was shot.</p><p>Within a day of Toste's slaying, police arrested Lopez Jr. and Whiterock, but they were released after prosecutors concluded that police hadn't given them enough evidence for a conviction.</p><p>In the months following the death, police said they were hopeful those involved in the shooting or their acquaintances would let information slip about the case that might lead to arrests.</p><p>Police and prosecutors declined Thursday to explain what additional evidence was developed during the past 18 months.</p><p>Henry said detectives spoke with about 150 witnesses who provided information about the Toste case and others.</p><p>"From our standpoint, we remained optimistic the entire time," he said. "We were able to identify relatively early on who was involved and what occurred, and so it was just a matter of doing the investigation necessary to prove what we believe occurred," he said.</p><p>"The final investigation and the results of that are much different today than they were a year and a half ago."</p><p>The charges</p><p>All five defendants are charged with murdering Toste to benefit a gang; personally using and discharging a semiautomatic firearm; participating in a criminal street gang; and conspiring to commit assault with a deadly weapon, assault and battery.</p><p>The gang and weapons enhancements can add several decades to any prison sentence.</p><p>At least three confidential witnesses testified before the jury panel, according to court documents. Another 60 witnesses testified, including nearly 30 law enforcement officers and several members of the defendants' families.</p><p>Using a criminal grand jury to indict defendants bypasses the more common process of holding a preliminary hearing, a sort of mini-trial where prosecutors need to prove to a judge they have enough evidence to proceed to trial. Defense attorneys cross-examine prosecution witnesses and can call their own witnesses.</p><p>But in a criminal grand jury, the prosecutor lays out the state's case directly to jurors without a judge present. The suspects are not present, defense attorneys are not allowed and the process is secret. If jurors vote to indict, the case heads to trial without any defense scrutiny.</p><p>Grand jury indictment</p><p>Legal experts say prosecutors use a criminal grand jury for several reasons, including in complex cases that would take extensive time in the usual process.</p><p>Terrence Hallinan, the former San Francisco district attorney and now a defense attorney, said grand juries often are used if prosecutors want to see where a case is lacking.</p><p>"You can use it if you don't want to let all the facts out yet, or if you want to use an informant who does not want to become public," he said. "If they won't indict, it's not a public thing. If they do, you get to clean your case up."</p><p>"The biggest benefit you have is the defense isn't present," said Peter Keane, a law professor at Golden Gate University. "There's no cross-examination, so the prosecution can cherry-pick among witnesses it wants. The defense is not given a dress-rehearsal of the trial by cross-examining the witnesses."</p><p>Passalacqua said he believes there is enough evidence to head to trial. "We are confident there is sufficient evidence to get a positive verdict from a jury," he said.</p><p>All five defendants have criminal records in Sonoma County, mostly involving misdemeanors. Lopez Jr. and Whiterock each have one felony conviction. Mejia is on probation from a misdemeanor assault case from 2006 and has a pending felony drug charge.</p><p>None have served prison time.</p><p>Staff Researcher Michele Van Hoeck contributed to this report. Staff Writer L.A. Carter can be reached at 568-5312 or lori.carter@pressdemocrat.com.</p>