Toste slaying suspects ID'd early, records show

<p>Within hours of Matthew Toste’s shooting death in December 2006 in a Santa Rosa parking garage, police interviewed all five of the eventual defendants, checked for gunshot residue and had witnesses identify at least some of them, grand jury transcripts released Friday show. Yet it would be 18 months before the five were charged in the killing.</p><p>The transcripts also show inconsistencies in the witness identifications and reveal that all five gunshot residue tests on the defendants’ hands were botched, yielding no usable evidence. The documents show Toste’s blood-alcohol level was 0.21 percent, nearly three times the legal limit for driving.</p><p>About 1,400 of 1,724 pages of testimony given during a secret three-week grand jury hearing in May and June were made public Friday evening over the objections of the defendants’ attorneys. Attorneys for The Press Democrat went to court seeking to unseal the entire transcript, citing state law that says grand jury records are public documents. </p><p>Prosecutors eventually succeeded in keeping about 300 pages of it sealed for what they called public safety reasons.</p><p>The transcripts reveal detailed descriptions of the killing and the specific evidence prosecutors believe proves the five men are guilty of Toste’s murder, which they say was done to benefit the norteño gang. If convicted of the charges, the men could be sentenced to life in prison.</p><p>Joseph K. Lopez Jr., 20; his father, Joseph K. Lopez Sr., 39; a cousin Raul Lopez-Granados, 20; Nicholas Mejia, 30; and Paul Whiterock, 28; all of Santa Rosa, are charged with murdering Toste, 32, on Dec. 3, 2006, in the Seventh Street garage.</p><p>Witnesses said a group of men began harassing Toste’s female cousin and Toste defended her. A verbal confrontation led to punches and at least five gunshots, witnesses testified.</p><p>Toste, a construction worker who shared custody of his then-5-year-old son, died after being shot twice in the chest.</p><p>Prosecutors say Lopez Jr. fired the fatal shots after seeing Toste knock his father unconscious with a single punch.</p><p>Toste’s cousin, Kim Barragan, and her brother-in-law, Jason Barragan, described a group of men who appeared to be looking for trouble in the parking garage.</p><p>Jason Barragan, who worked with Toste, said four of the five men drove into the garage in a gold Lexus and were acting “jumpy and nervous” as he and his wife walked by them a few minutes later.</p><p>“These guys start saying like all kinds of weird stuff, like trying to pick a fight,” he said. They walked past the men, trying not to make eye contact.</p><p>Kim Barragan said she, her friend and Toste were following about 40 paces behind. The men became even more aggressive, she said.</p><p>“They were all loud and saying (rude) things,” she said, saying Lopez Sr. targeted her.</p><p>“He was saying, ‘Oh, you’re fine, come with me.’ And he . . . grabbed my butt and my hair,” she said. “He kept touching me and trying to get me to come with them,” she testified.</p><p>Toste said, “Get away from her. Leave her alone . . . She’s a married woman,” she testified.</p><p>She said she tried to convince Toste to walk away, but he said, “No, Kimmy. They’re not going to touch you.”</p><p>The men encircled Toste’s party, she testified, coming in closer while continuing to yell things like, “F- you, white boy. Gringo. You think you can handle this?”</p><p>Lopez Sr. then grabbed Kim Barragan and tossed her aside, she said, and swung at Toste, missing. Toste landed a punch, flooring the elder Lopez.</p><p>Whiterock then raised his shirt to reveal a gun in his waistband, she said, which Lopez Jr. grabbed and – holding it sideways — fired several times at Toste from five to six feet away.</p><p>She testified that Whiterock and Lopez Jr. ran toward their car, Lopez still firing wildly. She said she saw him wiping his hands on his pants.</p><p>Mejia apparently was wounded by the gunfire.</p><p>At the police station later that day, Kim Barragan identified Lopez Sr. as the man who harassed her and was knocked unconscious by Toste. </p><p>She initially told police that Whiterock fired the gun, but later, after what she described as a “panic attack,” she said she recalled Lopez Jr. reaching around Whiterock’s middle to take the pistol from him.</p><p>Police arrested Whiterock and Lopez Jr. within a day, but prosecutors didn’t file charges and they were released. The other three defendants weren’t publicly identified as being involved until the indictment was unsealed in June and they were arrested.</p><p>Santa Rosa police said they believed they identified the suspects quickly, but were asked by prosecutors to submit additional evidence before criminal charges were filed.</p><p>Geoffrey Dunham, Lopez-Granados’ attorney, said disclosure of the additional details contained in the transcripts will endanger the men’s right to an impartial jury.</p><p>He said many of the allegations prosecutors argued to jurors will be challenged in court, and “much of it is purely opinion, not facts.”</p><p>Dunham and the other defense attorneys tried to keep the entire transcript sealed, saying their clients would be unfairly prejudiced by additional pro-prosecution information published about the allegations, particularly the gang allegations.</CW></p><p>In a grand jury proceeding, prosecutors are the sole arbiters of what evidence is relevant. There is no judge and no defense attorney to cross-examine witnesses, object to or challenge the evidence, although prosecutors are required to also present evidence in the defendants’ favor.</p><p>The documents indicate 32 civilian witnesses testified before the 19-member grand jury panel that convened in Petaluma, including a handful of relatives of the defendants and three confidential witnesses. </p><p>Another 31 police or law-enforcement-related witnesses testified, including the prosecution gang expert, George Collord, a retired Santa Rosa police detective.</p><p>Missing portions include all the testimony of three witnesses identified in court documents only as Witnesses A, B and C, among others’ partial statements. Also missing are large segments of the testimony of Santa Rosa police detectives and some portions that are not identifiable.</p><p>Prosecutors convinced Judge Lawrence Antolini that publication of the confidential witnesses’ names — and any testimony through which one could identify them — should remain sealed for their safety. Prosecutors have said that reputed gang members have a sort of code that “green lights” retaliation against them if their identity can be determined.</p><p>One witness is being protected in a relocation program “due to the likelihood of retaliation,” according to court documents.</p>