Conspiracy charge is out but murder charges remain in Toste case

<p>A Sonoma County judge on Wednesday dismissed conspiracy charges against five men accused of murdering a man in a downtown Santa Rosa parking garage in 2006, ruling that prosecutors presented inadmissible evidence to a grand jury in violation of the defendants' rights.</p><p>But Judge Lawrence Antolini's split ruling upheld the remaining four felony counts - including murder, weapons and gang allegations - against the men charged with shooting Matthew Toste in a Seventh Street parking garage on Dec. 3, 2006.</p><p>Wednesday's order was in response to several defense efforts seeking a dismissal of all or part of a grand jury indictment against Joseph Lopez Jr., 21, his father Joseph Lopez Sr., 40, cousin Raul Lopez-Granados, 21, Paul Whiterock, 29, and Nicholas Mejia, 31.</p><p>Investigators believe Lopez Jr. shot Toste after Toste knocked Lopez Sr. unconscious in a fistfight prompted by the senior Lopez's harassment of a female friend who was walking with Toste.</p><p>Prosecutors allege the men are gang members and committed the murder to benefit their gang, charges that can add significant prison time of they are convicted. The men face life prison sentences if found guilty of the charges.</p><p>Defense attorneys argue the shooting was a tragic end to what began as boorish behavior by a group of drunken men hanging out late at night in a city parking structure. They say the shooting had nothing to do with a gang.</p><p>Antolini ruled that even without the theory that Toste's killing arose from a conspiracy, prosecutors presented enough evidence that his death was a “natural and probable consequence” of “disrespecting” alleged gang members set on violence.</p><p>Since the indictment, defense attorneys have challenged portions of the case, alleging that grand jurors were given false, misleading and inadmissible evidence, particularly with regard to testimony of the men's alleged gang involvement.</p><p>They also argued that prosecutors failed to present evidence beneficial to their clients, which they are obligated to do. Their motions argued there was insufficient evidence to uphold the indictment and that Antolini should dismiss all or parts of it.</p><p>After several lengthy hearings on the issues, Antolini on Wednesday issued a seven-page written ruling dismissing the conspiracy charges against all five defendants, ruling that prosecutors presented evidence that would have been inadmissible in court, thus violating the defendants' due process rights.</p><p>He said the testimony of a key prosecution witness - Jessie Gonzalez Sr., who was with the defendants before and during the shooting, was mischaracterized by Santa Rosa police gang detective Francis Foo.</p><p>Gonzalez testified that the men went downtown to go “parking lot pimping,” looking for women and parties.</p><p>Foo testified that Gonzalez told police that the defendants went downtown “more” to seek retribution against twin brothers who fought with Mejia weeks earlier than to look for women.</p><p>“Detective Foo was not accurately representing (Gonzalez's) prior statements to police,” Antolini wrote. “Nowhere did (Gonzalez), in any of his police interviews, ever tell police they went downtown ‘more' for the purpose of finding (the twins) or that finding (them) was the ‘main' or ‘primary' reason for going downtown.”</p><p>Minus Foo's testimony, Antolini ruled, there was insufficient evidence to support a conspiracy charge.</p><p>Despite that, the judge ruled, prosecutors “presented ample admissible evidence supporting the murder charge” on two other legal theories that didn't require a conspiracy. He ruled that there was enough evidence to support the remaining charges of murder, gang activity, gun charges and others.</p><p>Spencer Brady, a spokesman for the prosecution, said the dismissal doesn't change prosecutors' focus.</p><p>“The ruling today doesn't substantially alter the people's case, nor does it substantially alter the potential sentence if the defendants are convicted,” he said.</p><p>“We respectfully disagree with the court's conclusion that there was insufficient evidence to support the conspiracy charge,” he said, noting that Antolini also “rejected each of the defendant's arguments regarding all of the other charges and allegations.”</p><p>Lopez Sr.'s attorney Gerald Villarreal said he will seek appellate review of Antolini's ruling on behalf of his client.</p><p>Of the prosecution's three theories of legal liability presented to grand jurors, two relate to the senior Lopez's behavior that night, including the conspiracy theory.</p><p>“What theory they relied on in returning an indictment on murder, we have no idea of knowing,” Villarreal said.</p><p>“It could be it doesn't have any effect, or it could be it puts a serious hit on them,” he said of the ruling's impact on the case. “The only thing certain is it will be one less verdict.”</p><p>Other defense attorneys declined to discuss their strategies following the ruling. </p><p>Either side can seek a higher court's review of Antolini's order. Brady said prosecutors are considering their options.</p><p>Additional pretrial hearings continue today. Dates for jury selection are not yet set.</p>