Gang evidence crucial in Toste murder hearing

<p>When is a crime “gang related”?</p><p>The distinction is crucial in the prosecution of five Santa Rosa men facing murder and conspiracy charges in connection with the Dec. 3, 2006 shooting of Matthew Toste, 32, in the Seventh Street parking garage in downtown Santa Rosa.</p><p>Santa Rosa residents Joseph Lopez Jr., 21, his father Joseph Lopez Sr., 40, cousin Raul Lopez-Granados, 21, and Paul Whiterock, 29, and Nicholas Mejia, 31, are all facing potential life sentences if convicted of murdering Toste.</p><p>Starting last week and continuing Monday, Judge Lawrence Antolini was hearing motions to dismiss all or parts of the case from all five men’s attorneys.</p><p>Among defense attorneys’ arguments is that prosecutors obtained an indictment against the men by misleading a grand jury with inaccurate, insufficient and prejudicial evidence. The gang evidence, they say, was particularly inflammatory.</p><p>Prosecutors maintain they acted within the law in properly instructing jurors and providing them with information that was beneficial to the defendants as well as incriminating. The gang evidence, they said, was important to show gang members’ mentality when challenged.</p><p>According to prosecutors’ theory of the crime, all five men bear responsibility for the slaying, although only Lopez Jr. is alleged to have fired the fatal shot.</p><p>The other four can be held legally responsible under laws describing aiding and abetting, conspiracy and if the murder is the “natural and probable consequences” of their actions that night.</p><p>Whether the crime is gang-related weighs heavily in those decisions, perhaps most importantly for Lopez Sr.</p><p>According to witnesses, he was harassing a female friend of Toste’s when Toste came to her aid. The men exchanged words, Lopez threw a punch that missed and Toste hit Lopez, rendering him unconscious on the parking lot floor when the shooting began.</p><p>Prosecutors characterize Lopez Sr. as an “active participant” in gang activity before, during and after Toste’s shooting. </p><p>If Lopez Sr. can’t be connected to the other defendants in some other way, he cannot be held liable for the slaying, his attorneys argued. In court Monday, they argued that he shouldn’t be lumped in with other gang members.</p><p>Prosecutor Spencer Brady laid out actions he said prove Lopez Sr. was actively participating in a gang:</p><p>He has tattoos of a 1 and a 4 on his legs, numerals used by the norteño gang.</p><p>He was arrested smashing out car windows with a “gang affiliate,” his niece’s husband.</p><p>In 1998, he was riding in a car with gang members when a gun was found in the car.</p><p>In 2000, he was a passenger in a car pursued by police with gang members in the vehicle.</p><p>In 2005, he was at a party with 100 gang members, some of whom were arrested.</p><p>Lopez Sr.’s attorney, Bart Scott, countered that almost every one of those incidents can be explained innocently:</p><p>The tattoos were done 20 years ago.</p><p>Prosecutors didn’t consider the misdemeanor window incident a gang crime.</p><p>The gun case was never filed by prosecutors.</p><p>He was a passenger in the pursued vehicle and was never charged in that case.</p><p>“There is not a shred of evidence” he’s been involved in a gang crime, Scott said. Misleading evidence suggesting he was an “original gangster,” or respected gang elder who offered housing to fleeing gang members was repeated to jurors in an effort to show he was an active gang member, he said.</p><p>“They are jumping from a completely banal record to the outlandish assertion that he’s kind of a gang godfather,” Scott said.</p><p>Brady countered that Lopez Sr. made several “specific decisions” on the night of Toste’s slaying that put him in the center of a gang assault and murder: “He throws a punch...He’s engaging in criminal conduct.”</p><p>“Consider it a chain of events,” Brady said. “He was a significant actor in a chain of events. If you lose consciousness, you can nevertheless be legally responsible, because you were actively involved in the entire chain of events that led up to the final link.”</p><p>Antolini hasn’t ruled on the motions. Additional arguments on other issues will continue Wednesday morning.</p>