Metropolitan News-Enterprise


Thursday, December 29, 2005


Page 1


C.A. Orders New Trial for Man Convicted of Gang-Related Murder

Div. One Panel Says South El Monte Defense Lawyer Failed to Conduct Competent Investigation


By KENNETH OFGANG, Staff Writer/Appellate Courts


A man serving 35 years to life in prison for a 1996 murder at a party that turned into a shootout involving Highland Park gang members is entitled to a new trial because his defense counsel failed to conduct an adequate investigation of the facts that led to the conviction, the Court of Appeal for this district ruled yesterday.

Mario Rocha’s trial lawyer, Anthony R. Garcia of South El Monte, failed to give adequate directions to his investigator; failed to discuss the case with the lawyer or investigators who had worked on the case before he was retained; made inadequate efforts to locate a witness considered “essential” by predecessor counsel according to a note in the case file; and “spent little time preparing for trial,” Presiding Justice Vaino Spencer wrote for Div. One.

“When trial counsel’s failure to investigate is this comprehensive, it is impossible to have any degree of confidence that petitioner received a fair trial,” the presiding justice wrote. “In other words, the deficient performance trial counsel rendered in conducting his pretrial investigation necessarily was prejudicial to petitioner and thus requires a new trial.”

The court found it unnecessary to address several other contentions made by Rocha’s habeas counsel, including a claim that Garcia was ineffective in failing to move to sever his case from that of two co-defendants, both known gang members, and allowing prosecutors to refer to Rocha as a gang member despite a lack of evidence to that effect.

‘Tremendous Win’

The ruling is a “tremendous win for a whole host of wonderful lawyers who have participated” in the case, attorney Robert A. Long told the MetNews. Long headed a team of pro bono attorneys from Latham & Watkins, who were persuaded to take the case after Sister Janet Harris, a Catholic nun with a friend who was married to a Latham partner, convinced them that a miscarriage of justice occurred, and after Rocha passed a polygraph test.

Deputy Attorney General David Voet, who argued that the alleged deficiencies in Garcia’s performance represented reasonable tactical choices, could not be reached for comment late yesterday.

Rocha was 16 years old at the time of the shooting, which occurred after the gang members crashed the pay-to-enter party, witnesses told police. A confrontation escalated from argument to fistfight to gunfight, they said, and witnesses identified Rocha, Richard Guzman and Raymond Rivera as the shooters.

Martin Aceves, 17, and an honors student at Cathedral High School was shot in the chest; Anthony Moscato, 20 was injured. Witnesses testified that Aceves had been trying to break up the brawl before shots rang out.

All three of the alleged shooters were convicted of murder and attempted murder, and Rocha, said to be a first-time offender, was sentenced to 29 years to life for the attempted murder of Moscato and 35 years to life for the murder of Aceves. The Court of Appeal affirmed in an unpublished opinion in 1999.

Rocha’s habeas corpus petition resulted in an order to show cause and was referred to Los Angeles Superior Court Judge Bob S. Bowers. Bowers denied relief after a hearing at which three witnesses who said they had not been contacted by Garcia or his investigator testified.

Bower ruled that Rocha was not entitled to a new trial because the new evidence did not establish his likely innocence. One of the witnesses was less than credible, the judge observed, and the others gave testimony that did little to bolster the defense, Bowers found.

But Spencer, writing for the Court of Appeal, said Bowers erred because a defendant is not required to prove his innocence in order to prevail on an ineffective assistance claim; he need only show that counsel performed below a standard of reasonable competence and that the trial was rendered unreliable or fundamentally unfair as a result.

The presiding justice acknowledged that counsel need not investigate all possible witnesses. But a refusal to investigate leads that may be helpful to the defense may be ground for relief, she said, concluding that Garcia’s “approach to the investigation was so deficient that it was tantamount to a refusal to investigate.”

‘Desultory Efforts’

Spencer agreed that Garcia and his investigator failed to interview more than a handful of the 50 guests who attended the party, some of whom, the defense claimed, could have refuted the one witness who claimed to have seen Rocha fire a gun. The defense “made only desultory efforts, if any, to locate most witnesses and spent very little documented time in preparation of the case,” she said.

While Bowers may have been correct in finding the testimony of the witnesses who testified at the habeas corpus hearing unpersuasive, the presiding justice wrote, “the existence of these witnesses suggests what a timely and thorough investigation might have yielded.”

In a footnote, Spencer said the court was required by the State Bar Act to report Garcia to the State Bar for possible disciplinary action based on its having overturned the judgment on grounds of ineffective assistance.

Garcia, who said he had not read the opinion, said he was pleased that Rocha has a chance at freedom but feels he handled the investigation and other aspects of the defense properly.

The case is In re Rocha, B180415.


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