Metropolitan News-Enterprise


Monday, November 17, 2014


Page 1


Court Upholds Dismissal in Suspected Gang Murder


By a MetNews Staff Writer


The constitutional protections against double jeopardy bar retrial of a defendant whose conviction was thrown out because it was based on uncorroborated accomplice testimony, the Court of Appeal for this district ruled Friday.

Div. Eight affirmed the dismissal of charges against Raul Pedroza, one of several Las Lomas gang members linked to the murder of Donald Schubert. Schubert, who himself had ties to the gang, was killed in the carport of his Rosemead apartment complex in 1998.

Police and prosecutors concluded years later that the murder was a “gang hit” ordered by Eulalio “Lalo” Martinez, a Mexican Mafia leader who had ordered several such killings from Pelican Bay State Prison, where he had been locked up for a number of years. Martinez, they said, gave the order based on Schubert’s supposed cooperation with a man who had killed Martinez’s brother years earlier.

Martinez was charged in the murder, and in other crimes that occurred while he was in prison, but died last year of an accidental drug overdose at the Los Angeles County jail.

The first person convicted of Schubert’s murder, Daniel Ahumada, pled guilty and was sentenced to 15 years to life in prison. He later implicated Pedroza and fellow gang members Joseph Garivay and Javier Renteria.

At Pedroza’s trial, Ahumada testified that on the night before Thanksgiving 1998, he was selling rock cocaine at the apartment complex where Schubert lived when he came across Pedroza and Garivay.

(Garivay—who turned himself in in 2008 and confessed to his role in the murder—was tried separately, convicted, and sentenced to 50 years to life in prison. His conviction was upheld by the Court of Appeal in 2011.)

Garivay, according to the testimony, said Schubert owed him money but was avoiding him, so Ahumada agreed to get Schubert out of the apartment on the pretense of needing help with his car. Ahumada testified that he walked out to the carport with Schubert, heard two shots, and ran away, but in looking back saw Pedroza pointing a revolver at the victim and saw Garivay shoot him twice more with a shotgun.

Ahumada denied a claim that he had claimed to be the shooter. On cross-examination, he admitted that he and Schubert had been in a fistfight two years before the murder.

Jurors found Pedroza guilty of first degree murder and conspiracy, with a gang enhancement. The defense moved for a new trial based on Penal Code §1181, arguing the evidence was insufficient because the conviction rested on the uncorroborated testimony of Ahumada, an admitted accomplice.

Judge Kathleen Kennedy, who noted that she had not granted a new trial motion in her previous 24 years on the bench, said that “I do feel that in looking at everything, that the corroboration was insufficient,” and set a date for the parties to return to court.

The defense then moved to dismiss with prejudice, citing Hudson v. Louisiana (1981) 450 U.S. 40 and related cases, holding that a dismissal for insufficient evidence is tantamount to acquittal for double jeopardy purposes. Prosecutors responded that in ruling based on her view of the accomplice testimony, Kennedy was acting as a “13th juror,” and thus had the power to order a new trial but not to dismiss the case outright.

The judge sided with the defense, calling Hudson “absolutely on point,” and dismissed the case.

On appeal, prosecutors argued that there was sufficient corroboration of Ahumada’s testimony, and that even if there wasn’t, retrial was not barred by the double jeopardy clauses.

Presiding Justice Tricia Bigelow, writing for the Court of Appeal, said the trial judge was correct on both issues.

Bigelow cited People v. Salgado (2001) 88 Cal.App.4th 5, which held that an order granting new trial, followed by an immediate dismissal of the charge, barred retrial where it was clear that the ruling was based on insufficiency of the evidence, and the trial court had applied the correct standard in concluding that the prosecution failed to present substantial evidence of guilt.

The presiding justice also cited the recent U.S. Supreme Court decision in Evans v. Michigan, holding that a defendant whose motion for a directed verdict was granted at the close of the prosecution’s case could not be retried, even though the trial judge erred by acquitting based on lack of proof of an element that the relevant statute did not require.

The evidence of Pedroza’s guilt was insufficient as a matter of law, the presiding justice said. Apart from Ahumada’s testimony, she reasoned, the only facts the prosecution proved with respect to the defendant were that he and the others accused of the crime were members of the same gang, that the gang was experiencing frequent “in house murders,” and that Pedroza, Ahumada, Garivay, and Renteria had been seen together in the garage of Garivay’s home three hours or more after the murder.

That evidence did not corroborate Ahumada’s testimony linking Pedroza to the murder, Bigelow said. While acknowledging that there was other evidence corroborating aspects of the testimony, such as the fact that Schubert’s body was found where Ahumada said the shooting took place, that evidence did not tend to prove that Pedroza was involved in the murder, the presiding justice explained.

Attorneys on appeal were Deputy District Attorneys Phyllis Asayama and Ann H. Park—a Los Angeles Superior Court judge-elect—for the prosecution and Danalynn Pritz, by appointment, for the defendant.

The case is People v. Pedroza, B247666.


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