Dismissals sought in Toste slaying

Defense attorneys hope a judge?s list of 14 concerns about a grand jury indictment in a downtown Santa Rosa slaying means he?ll be sympathetic to their bid to have the case dismissed.

Attorneys for five defendants in the 2006 shooting of Matthew Toste will make their final pleas Wednesday seeking to have the indictment thrown out or amended.

Petitioning for dismissal of a case on the eve of trial is standard procedure. Trial for the five men charged with killing Toste is set to begin Aug. 28.

But defense attorneys have particular objections to the case because of the district attorney?s decision to bypass normal public charging procedures in favor of a secret grand jury where only prosecutors present evidence.

?At least 10 of them (the questions) had to do with issues that would affect all five defendants,? said defense attorney Kristine Burk, whose client, Paul Whiterock, is suspected of supplying the gun used in the Dec. 3, 2006 shooting.

Toste was shot dead early that morning in the Seventh Street Parking Garage after a group of men accosted his female cousin, according to grand jury testimony.

One of the men, whom she later identified as Joseph Lopez Sr., touched and harassed her, prompting Toste to come to her defense.

After Lopez Sr. swung at him, Toste decked Lopez Sr., she said.

She said Whiterock then displayed a gun, which Lopez?s son, Joseph K. Lopez Jr., used to shoot down Toste.

Another grand jury witness said the men went downtown that night seeking some men who had fought with another defendant, Nicholas Mejia, two weeks earlier. Raul Lopez-Granados is the fifth defendant.

Prosecutors assert all five men are guilty of murder on the theory they aided and abetted offenses for which the slaying of Toste was a natural consequence. Each faces a possible life sentence if convicted.

All five attorneys filed lengthy motions seeking to have the case dismissed, citing grand jury proceedings, evidence and the legal theory used by prosecutors.

Oral arguments on the motions were set for last Friday but delayed because of an illness on the prosecution team.

However, Judge Lawrence Antolini informed Chief Deputy District Attorney Robert LaForge Friday that there were 14 questions raised by the defense that prosecutors still need to address.

They included challenges to the sufficiency of the evidence supporting accusations of conspiracy and aiding and abetting. He also questioned claims that the shooting was a ?natural and probable? consequence of earlier actions against the victims.

Antolini also highlighted defense claims that a slide show about gang culture presented to the grand jury was prejudicial, inflammatory and inadmissable in court, and sought more evidence as to the gang status of two defendants.

LaForge said Antolini?s list merely articulated questions the judge would have raised during the hearing had it taken place. ?These are just the issues you deal with on any motion to dismiss,? LaForge said.

But Burk said she believed Antolini?s questions went beyond ?boiler plate? debate on dismissal.

?His questions indicated some serious issues,? said Lopez Sr.?s attorney, Gerald Villareal.