Defense case: Toste slaying was justified

<p>A lawyer for a Santa Rosa man on trial for the slaying of Matthew Toste in a downtown parking garage more than three years ago conceded Wednesday his client did the shooting, but insisted it wasn't murder.</p><p>Rather, defendant Joseph Lopez Jr. thought Toste had shot his father during a scuffle between the two in which Toste knocked the father to the ground, said George Boisseau, the younger Lopez's lawyer.</p><p>Lopez Jr. didn't see the punch, but saw his father fall after hearing what he thought was gunfire, Boisseau said. Believing he was in grave danger, his client his own gun and fired on Toste, killing him, the lawyer said.</p><p>It was a reasonable response considering the circumstances and points to a justified shooting, Boisseau told jurors.</p><p>“This shooting is not a murder,” Boisseau said. “It's a justifiable shooting done for the most basic reason: he was protecting his father.”</p><p>The comments provided the first glimpse at a defense explanation for the shooting that sparked grand jury indictments and community fears that gang violence was creeping into downtown. They came during opening statements from both sides in the trial of Lopez Jr., 21, and co-defendant Paul Whiterock, 29, which is expected to last up to six weeks.</p><p>Prosecutors told the nine-woman, three-man jury a much different version of events of what occurred Dec. 3, 2006 inside the Seventh Street parking garage. They played 911 tapes and showed pictures of Toste's body on the concrete that drew sniffles from family members in the courtroom.</p><p>Chief Deputy District Attorney Spencer Brady said Toste, a 32-year-old construction worker, his date, a female cousin and her husband had just parked their car and were walking through the garage to a nearby nightclub when they were confronted by a group of at least six men.</p><p>The men, later identified as members of the Norteño criminal street gang, made catcalls and whistled and touched one of the women on the buttocks, Brady said.</p><p>When Toste objected, the men surrounded him and began taunting him. “They were saying, ‘Hey whiteboy. What are you going to do?'” Brady told jurors.</p><p>A fight broke out in which Toste punched Lopez Sr., knocking him to the ground, Brady said.</p><p>That's when Lopez Jr. pulled out a .32 caliber semi-automatic pistol and shot Toste at point-blank range, hitting him once in the heart and in the side, Brady said.</p><p>Chaos ensued in the garage and on the street near the popular nightclub called Seven, which as since closed. Jurors listened to a tape of a 911 call made by Toste's date, Kelly Griffin, who requested an ambulance and tried to describe the assailants.</p><p>“We need an ambulance .<TH>.<TH>. he was trying to protect us,” Griffin said on the tape. “He's dying. He's almost dead.”</p><p>Three men were detained at the scene. Two had been wounded by stray bullets from Lopez Jr.'s gun. Lopez Jr. and Whiterock, who prosecutors say helped Lopez Jr. flee in his car, were arrested the next day but released without charges. They eventually were indicted by a grand jury in 2008 and have been in custody since then. Three others have pleaded guilty to lesser offenses.</p><p>Brady said witnesses identified Lopez Jr. as the shooter and ballistics tests matched slugs taken from Toste's body to shell casings found in the garage and ammunition seized in a search of Lopez Jr.'s house.</p><p>He asked jurors to return first-degree guilty verdicts on the four counts, which include murder for the benefit of a criminal street gang.</p><p>But Boisseau contended the killing had nothing to do with gangs. And he said Lopez Jr. fled out of panic. And Boisseau said the law allows the use of deadly force to protect another person if they appear to be in danger.</p><p>“If it's reasonable it doesn't matter if he was wrong,” Boisseau said. “It was what he knew. He had to save his father.”</p><p>Whiterock's attorney, Kristine Burk, said her client was 150 feet away when Toste was shot. Burk said inconsistent witness statements and investigative errors would establish that her client is innocent of all charges.</p><p>After opening statements, Brady called to the stand four Santa Rosa police officers who were among the first to arrive at the scene. Officer Travis Menke said she arrived to find Toste clutching his chest and people “screaming and running” in all directions.</p><p>He said he asked Toste who shot him but he wasn't able to talk. He died moments later.</p><p>Another officer said there were 100-150 people in the street. He said that as he pursued a suspect in the garage he saw Toste stretched out on the floor and people performing CPR.</p><p>Testimony is to continue Thursday morning. Judge Lawrence Antolini denied requests from The Press Democrat to take photographs inside the courtroom Wednesday. He would not explain the ruling. Earlier, he imposed a gag order on all participants in the trial.</p><p>Also, prosecutors Wednesday refused to hand over a transcript of the 911 tape, citing the gag order. And Antolini ruled a list of witnesses would remain confidential.</p>