Metropolitan News-Enterprise


Monday, December 1, 2008


Page 1


Court of Appeal Upholds Conviction in Gang Killing Over Hat Color


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal has upheld the murder and attempted murder convictions of an Alameda County gang member who shot two men in the vehicle next to him at a red light from the passenger seat of a minivan because one victim’s hat was the color worn by a rival gang.

Ruling that the trial court correctly let the jury determine whether passengers in the vehicle with Edgardo Rodriguez were accomplices whose testimony required corroboration, but erred when it failed to explain that the men would be accomplices if the shootings were a natural and probable consequence of a related assault charge to which they pled guilty, Div. Five Wednesday concluded that other witnesses provided sufficient corroboration tying Rodriguez to the crimes.

Nineteen-year-old Francisco Javier Sanchez was shot and killed on an afternoon in September 2003 while behind the wheel of his vehicle at an intersection in the Oakland suburb of Hayward.

He and his friend, Osvaldo Ramirez, were members of the Laborers Union, and had just paid their union dues at a union hall down the street and were heading to the supermarket when they stopped at a red light and a white minivan pulled up next to them on the driver’s side.

Vehicle’s Driver Attacked

Witnesses testified that one man leapt from the van and began punching Sanchez through the open driver’s window, and that a hand holding a semiautomatic pistol then extended from the van’s front passenger window and fired approximately six shots into the car, killing Sanchez and injuring Ramirez.

Using witness’ descriptions of the van and its license plate number, police identified the driver as Bryan Giddings, and thee passengers: Rodriguez, Manuel Robles and Omar Anwar. All four were members of a street gang affiliated with a Norteno gang, which refers to a coalition of traditionally Latin gangs originating in Northern California.

In exchange for a pleas to a lesser charge of aiding and abetting an assault by a defendant with a semiautomatic firearm, Giddings, Robles and Anwar later testified that they had been driving that day around listening to music, drinking beer, smoking marijuana and discussing their problems with “Scraps,” a derogatory term for rival, Sureno-affiliated gang members.

Blue Baseball Cap

Giddings testified that Rodriguez said he wanted to “get me a Scrap,” and when the men pulled up to an intersection, they noticed a maroon car next to them with two young Hispanic men inside, one of whom—Sanchez—was wearing a baby blue University of North Carolina baseball cap.

Surenos claim the color blue, while Nortenos claim the color red, and Giddings, Robles and Anwar said that Rodriguez ordered Anwar out to confront or punch Sanchez, and then opened fire after Anwar punched Sanchez twice.

The three men later said they did not believe Sanchez and Ramirez were Surenos because the pair did not present themselves the way gang members do and did not fight back or appear to know how to react, and because Sanchez smiled at Giddings before the attack.

Rodriguez was convicted of murder and attempted murder and sentenced to life in prison, but he argued on appeal that Alameda Superior Court Judge Reginald P. Saunders erred by declining a request to instruct the jury that Giddings, Robles and Anwar were accomplices as a matter of law, requiring corroboration of their testimony under Penal Code Sec. 1111.

He also contended that Saunders—who instructed the jury that corroboration was required if it determined the passengers were Rodriguez’s accomplices—erred by declining to instruct that the three men could alternatively be determined accomplices if the shootings were the natural and probable consequence of their assault charge.

However, Alameda Superior Court Judge Thomas Reardon, sitting by assignment, wrote for the Court of Appeal that Saunders’ decision that the passengers’ status was a disputed factual issue requiring jury resolution was correct given the three men’s testimony that they did not know Rodriguez would shoot Sanchez, and the fear and anger they exhibited when Rodriguez did so.

Reardon agreed with Rodriguez that the trial court erred when it “did not explain that the witnesses would be accomplices if they aided and abetted the committed crime or if they aided and abetted a target crime of which the committed crime was a natural and probable consequence.”

But the judge said that Saunders’s error was harmless given the amount of corroborating evidence connecting Rodriguez to the crime, including testimony from Roble’s sister placing Rodriguez in the van’s passenger seat almost one-half hour prior to the shooting, and testimony from other witnesses connecting the van to the scene of the crime.

In unpublished portions of the opinion, the court also concluded that the trial court did not err when it admitted evidence that Rodriguez had unsuccessfully attempted to shoot a Hispanic man wearing blue from the front seat of the van a few days before Sanchez’s murder, and rejected Rodriguez’s challenge to Saunders’ admission of expert testimony on criminal street gangs.

Presiding Justice Barbara J.R. Jones and Justice Henry E. Needham Jr. joined Reardon in his opinion.

The case is People v. Rodriguez, 08 S.O.S. 6473.


Copyright 2008, Metropolitan News Company