Metropolitan News-Enterprise


Wednesday, August 8, 2001


Page 3


C.A. Upholds Life Terms for Gang Member Who Reneged on Plea Bargain


By a MetNews Staff Writer


The Sixth District Court of Appeal has upheld the imposition of consecutive life terms upon a state prisoner whom the trial judge found to have reneged on an agreement to testify against fellow gang members.

Edward Vargas, a member of the San Quentin-based Nuestra Familia, was  sentenced to 60 years to life in prison after Santa Clara Superior Court Judge Kevin Murphy vacated a plea agreement and forced him to trial with three other gang members—all of whom were convicted of multiple murders and are now on death row.

Murphy found that Vargas—who would have gotten only five years under the plea-deal—had violated the agreement by giving false statements to prosecutors.

Vargas was one of 21 NF members indicted in 1992. Because most of the defendants—whose gang is over 30 years old and is considered the Northern California counterpart of the Mexican Mafia—faced special-circumstances murder allegations, the case was described at the time as the largest death-penalty case in U.S. history.

All of the defendants were accused of being part of a conspiracy to commit numerous felonies, including murder, robbery, burglary, assault, extortion, arson, witness intimidation, and drug dealing. The indictment alleged 96 overt acts.

In addition to being named as a co-conspirator, Vargas was charged with the 1991 murder of Elias Rosas, a 27-year-old member of the gang. Rosas was stabbed to death in a parking lot, and witnesses testified that Vargas ordered the killing because Rosas had “snitched” on a fellow member involved in a burglary and drug theft at the home of Rosas’ girlfriend’s mother years earlier.

Vargas was implicated by several defendants who accepted plea bargains. Vargas himself agreed to plead guilty to gang participation and testify against the remaining defendants in exchange for the five-year term.

The plea agreement required  that Vargas provide complete and truthful information to the prosecutors and testify at all hearings and trials in the case. Ten months after entering the plea and giving a statement to prosecutors, Vargas gave another statement, which contained some inconsistencies.

Six months after the second statement, prosecutors moved to vacate the plea agreement on the grounds that untruthful information had been provided. They later entered into a stipulation with Vargas’ lawyer, Albert Meloling, that an agreed-upon FBI expert would administer a polygraph test and that the results would be admissible at a hearing on the motion.

Murphy ruled, based on the inconsistencies between the two statements and the polygrapher’s conclusions that Vargas had lied on key questions, that the plea bargain was violated.

Vargas then went to trial, and was convicted on the two counts with which he was charged. On appeal, represented by new counsel, Vargas argued, among other things, that the motion to vacate the plea bargain was waived or barred by laches and that Meloling had rendered ineffective assistance by agreeing to the polygraph without first  investigating whether the defendant could give truthful responses that would help him defeat the motion.

The defense also contended that the consecutive sentences violated Penal Code Sec. 654’s ban on multiple punishments for the same crime.

Justice Eugene Premo, writing Monday for the Court of Appeal, rejected all of the defense contentions.

Because the agreement required Vargas to cooperate as to all aspects of the case, the justice reasoned, the prosecution could move to vacate it at any time and as to any breach, “within the time frame of the agreement, which was, at the very least, the full course of the trial.”

Even if the motion was untimely, Premo said, the defendant failed to show prejudice, since he had two years to prepare for trial after the plea agreement was vacated.

The justice went on to reject the claim that Meloling—whom Vargas tried to fire three times, and who sat several feet from his client at sentencing because Vargas had threatened him—had rendered ineffective assistance with respect to the polygraph.

Because it was possible that the decision to stipulate to the test was a reasonable tactical decision at the time it was made, Premo explained, the burden was on the defendant to show what his lawyer’s reasons were and why no reasonable lawyer would have made the same decision.

Vargas’ appellate counsel, the justice said, offered no such explanation and thus could not overcome the presumption of reasonableness. As for the consecutive sentences, Premo said, it is well-established law that Sec. 654 is not violated when separate sentences are imposed for a substantive crime and for a conspiracy which “had an objective apart from an offense for which the defendant is punished.”

It was clear from the evidence, Premo said, that the Nuestra Familia had killed several people besides Rosas, so there was nothing unfair about imposing a consecutive term on Vargas for conspiracy to commit murder.

The case is People v. Vargas, 01 S.O.S. 3960.


Copyright 2001, Metropolitan News Company