Three people who faced murder charges in the 2008 shooting death
of a friend under a rarely invoked and controversial legal theory
have struck a deal with prosecutors and won’t spend another day in
jail. Full article
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Three people who faced murder charges in the 2008 shooting death of a friend under a rarely invoked and controversial legal theory have struck a deal with prosecutors and won’t spend another day in jail.
Gilroy residents Robert Barrios, 22, Heather Ashford, 20, and Angel Solorzano, 21 – who were released from custody two weeks ago – appeared in court for sentencing Thursday after waiting roughly two years to find out if they would be charged in the murder of Larry Martinez, Jr., who prosecutors say was gunned down by rival gang members in broad daylight Nov. 11, 2008 on Church Street in Gilroy.
Although Cristian Jimenez, 23, remains in custody on homicide charges for allegedly shooting and killing Martinez, the three other defendants were charged under the “provocative act murder” theory, in which a person can be slapped with murder charges even if they didn’t commit an action that directly caused the death, said Frank Carrubba, Santa Clara County deputy district attorney.
Carrubba said he believed it was the first time the theory had been executed in Santa Clara County.
The District Attorney’s office, however, agreed to drop its pursuit of provocative act murder June 30 after it determined the recommendation through exhaustive research and assistance from a theory expert at the Los Angeles County District Attorney’s Office, Carrubba said.
He said the trio’s actions the day of the shooting likely didn’t incite the alleged shots from Jimenez, who might not have noticed Barrios, Ashford and Solorzano when he was confronted by Martinez, Carrubba said.
“Under the facts of our case, the provocative act murder doctrine was a tortured theory … used to wrongfully charge people with murder, who were unarmed, did not intend to kill anyone and did not kill anyone,” said Ed Sousa, Barrios’ attorney. “Both legally and morally, the Santa Clara County District Attorney’s Office made the responsible and fair decision to dismiss the murder charges.”
The three defendants instead pleaded no contest June 30 to conspiracy to commit assault with a deadly weapon, with an added qualifier that it occurred for the benefit of a criminal street gang, Carrubba said.
Martinez, Barrios and Solorzano had “well-documented” ties to the Norteño criminal street gang, Carrubba said. As for Ashord, he said, “You don’t have to be a member of a criminal street gang to be charged.”
The district attorney’s office underwent a change in leadership in the middle of the case. Jeff Rosen defeated Dolores Carr in a June 2010 election to grab hold of the county’s top legal post. Carrubba, however, said the change had no effect on the decision to drop the special murder charges.
About 30 minutes before the 1:20 p.m. shooting, Jimenez and two other rival Sureño gang members who are still at large – Edgardo Centeno, 21, and an unnamed juvenile – threw a rock at the car Martinez and Solorzano rode in while Ashford drove, according to police. Soon after, Ashford, Martinez and Solorzano picked up Barrios and returned to confront the Sureños, police said. Armed with a small wooden bat, Martinez and his friends snuck up on the rival gang members from behind, provoking the Sureños to turn and shoot, prosecutors said.
Ashford was not present when the shooting occurred, Carrubba said, and Solorzano and Barrios followed Martinez around a corner house on to Church Street when the shots were fired. The two male defendants trailed approximately 30 feet behind Martinez and might not have been seen by the Sureños, Carrubba said.
“It would be very difficult to provoke someone if they aren’t even seen,” he said.
Of his group, only Martinez was armed, a key fact, Carrubba said, because the prosecution must remove the actions of the victim when pursuing provocative act murder charges.
“We did some extensive research, and we were able to determine that this particular fact pattern did not fit legally,” Carrubba said. “Legally, the provoking party has to do something so provocative that under normal circumstances a reasonable person would respond with deadly force.”
Though their sentencing hearing was delayed Thursday until Aug. 25 to allow the county probation department time to decide how many days in custody they would receive credit for, Carrubba said the three defendants would likely receive sentences of up to four years each. Because of a “50 percent” credit rule – in which the three received one day back for every day served – Barrios, Ashford and Solorzano have effectively completed their sentences, he said.
“For all intents and purposes, their time in this particular case is done,” Carrubba said.
Sgt. Chad Gallacinao of the Gilroy Police Department said the department was pleased the three defendants were held responsible for their actions, adding the GPD would be keeping a eye on them.
“They will be closely monitored by the police department for years to come,” he said.
Still, Gallacinao said the case could serve as a deterrent to gang activity despite murder charges being dropped for three of the defendants.
“In this incident, people were held responsible for their actions. That’s the beautiful thing about the justice system. Even though the police department does investigate and gather all the facts, it’s up to the district attorney and the courts to determine an outcome,” he said. “Ultimately there’s those checks and balances.”
Provocative act murder
The provocative act murder theory allows the district attorney’s office to charge someone with murder if they were involved in a crime that eventually led to someone’s killing. Under the theory, it is argued that the person committing the crime contributed to circumstances that provoked violence, and the person who was killed would not have died if not for the original crime. Robert Barrios, Heather Ashford and Angel Solorzano had been charged under provocative act murder, but agreed to lesser charges of conspiracy to commit an assault with a deadly weapon after prosecutors decided they couldn’t prove their actions were responsible for the death of their friend, Larry Martinez Jr.
