By pressing unprecedented charges against both sides involved in a deadly gang shooting, District Attorney Dolores Carr hopes to send a message loud and clear: “Our community will not tolerate gang violence.”
During her 2.5 year tenure as District Attorney of Santa Clara County, Carr has never before invoked the provocative act murder theory – which allows her office to press murder charges against anyone involved in a crime that is likely to provoke a deadly response. Five suspected gang members face murder charges in connection with the shooting death of Larry Martinez, an 18-year-old suspected Norteño gang member who was shot down last November when a gang fight erupted blocks away from the Gilroy Police Department. What’s unusual about the case is that three of the five suspects being charged with Martinez’s murder fought on Martinez’s side, Carr said.
“All of the gang members from both sides should be charged with the murder of Larry Martinez,” Carr said Tuesday afternoon outside the South County Courthouse in Morgan Hill while two of the suspects were being arraigned inside. “The people of Santa Clara County deserve protection from these menaces.”
Gilroy Police Chief Denise Turner agreed.
“We don’t take this lightly,” she said, adding that Gilroy is home to 900 documented gang members. “We think this will send a clear, strong message.”
Though other district attorneys in California have used the provocative act murder theory to successfully prosecute murder cases, Assistant District Attorney David Howe said the theory is not commonly used. However, gang-related crimes often lend themselves to cases where multiple accomplices are held accountable for aiding or abetting a crime, he said.
The provocative act murder theory is more commonly associated with robberies. For example, if a person is being robbed and responds to his attacker with deadly force, an accomplice of the robber could be held liable for the robber’s death, Howe said.
“They may not have pulled the trigger, but their actions were likely to result in a lethal response,” he said.
He could not immediately name an instance where the theory has been used to prosecute gang members responsible for a gang-related homicide.
Derived in 1965 as an offshoot of the felony murder rule – which holds participants engaging in a felony that results in a death responsible for that death – the provocative act murder theory allows the District Attorney’s Office to bring murder charges against three of Martinez’s associates and suspected Norteños – Angel Solorzano, 19, Heather Marie Ashford, 18, and Robert Barrios, 20, for engaging in actions that provoked members of the rival Sureño gang to kill their friend.
Police arrested Solorzano and Ashford Monday on murder warrants. The two are currently in police custody without bail. Barrios is outstanding.
The charges stem from a gang shooting that took place in broad daylight just blocks from the Gilroy Police Department. At 1:20 p.m. Nov. 11, 2008, three Sureño gang members shot Martinez in the chest after Martinez – brandishing a baseball bat – Solorzano and Barrios approached the group from behind, according to court documents. When the Sureños produced two handguns and opened fire, Solorzano and Barrios escaped in a waiting car, driven by Ashford. Martinez died at the scene from a gunshot wound to the chest.
Half an hour before the shooting, the same three Sureño gang members threw a rock at the car Martinez and Solorzano rode in with Ashford at the wheel, according to witness reports. After a brief discussion, Ashford, Martinez and Solorzano picked up Barrios and returned to confront the Sureños.
“Gathering additional persons to even up the odds and sneaking up on rival gang members armed with a weapon undoubtedly results in a high probability of provoking a deadly response,” Carr said. “So we can’t be surprised that someone was killed that day.”
Although Ashford stayed in the car, she faces murder and conspiracy charges, both felonies. Solorzano and Barrios face identical charges in connection with the death of their friend. In police interviews, Solorzano and Barrios admitted to being at the scene of the shooting, police said.
The district attorney’s office also brought murder charges against alleged shooters Edgardo Centeno, 19, and Cristian Jimenez, 21 – members of the Sureño street gang – with a further allegation that the crimes were carried out to benefit a criminal street gang and that both men intentionally discharged a firearm to cause Martinez’s death. Police arrested Jimenez Thursday on a murder warrant, on other warrants and for violating his probation. He is currently in police custody without bail. Police noted Jimenez’s various gang tattoos, including “VSR” on his neck – signifying membership in Varrio Sur Rifa, a Sureño criminal street gang based in the Gilroy area – and “Sureño” on his forearm.
Centeno is outstanding. A search of his residence in November 2008 revealed various gang connections, including cell phone numbers of known Sureño gang members and the letters “VSR” scratched into a door at his residence.
A third Sureño – an unidentified juvenile suspect – is also outstanding.
Carr said her office closely examined the evidence and believes it can prove the case using the provocative act murder theory.
“What’s really unusual about this case is that we are prosecuting the people who are on the side of the person who was killed, so they may consider themselves victims,” Carr said. “But in truth, they’re all accountable for being members of violent criminal street gangs and provoking this kind of deadly response by going after each other.”
