Prosecution Throws Curve Ball in Closing in Gang Case

by Antoinnette Borbon and Silvia Ramos Medina

Defense counsel used a bit of an animated reenactment of the alleged robbery and assault in closing arguments  yesterday. Attorney Jeff Raven even evoked an outburst of laughter as he displayed the swings made on the alleged victim.

Raven acted out a speculative dialogue of the conversations from the night of June 19, 2013. Jurors watched as Raven created quite a scenario for them to visualize what may or may not have happened that night.

Attorney Keith Staten would give an entertaining closing argument for the jurors too, also evoking a few chuckles with his statements.

Attorneys Ava Landers’ and Bob Spangler’s closing arguments had a more serious but detailed focus. Nonetheless, it appeared that all four defense counsel would prove to captivate their audience.

However, first up with her closing was Deputy District Attorney Robin Johnson. Ms. Johnson would focus more on the gang relation, admitting this case would be difficult to present to a jury.

The four young Hispanic men are accused of robbing and assaulting a Woodland man, to further promote the criminal street gang, Norteños.

DDA Johnson would begin her initial closing with, “Good Morning, Ladies and Gentlemen, you’ve now heard all the evidence in this case and now the emphasis is on you. I told you that, one, a gang case is hard to put on for a jury because you have witnesses who don’t want to cooperate. What you do not have is a witness who sits on the stand and points out, this is the person or persons who did this!”

She said, “You will find that the defendants did connect with the victims and with intent to rob and assault, for the benefit of a criminal street gang known as the ‘Norteños.'”

Johnson stated that the two alleged victims walked into the store, bought items and, as they walked out, a male in a black shirt asked the girlfriend of Nichols for a dollar. After an exchange of words in regard to gang affiliation and a bad name said to his girlfriend, she stated, “The fight was on.”

Johnson said, “We know Nichols was not in the habit of taking comments he didn’t like.”

She stated, “We can see from the video three men walk into the store but we know the two were confronted by a different group as they walked outside.”

It was outside of the 7-Eleven store where one of the men allegedly asked Nichols if he banged, and called him a tweaker along with yelling out “Bosque,” a term representing the Norteños street gang. Johnson said after Nichols told them that he didn’t “give a beep who they were,” the fight was on.

She said Nichols threw the first swing, hitting one of the men to the ground, then another. It was then that witnesses saw six to seven men hitting Nichols.

Johnson said, “One man told Nichols he was going to steal his bike, and Beatty, Nichols’ girlfriend was scared, yelling while the fight was happening.”

“Then inside the store you see Fuentes look out the window, and seconds later run out towards the fight,” Johnson stated.

She said we know it was Fuentes because Beatty described his Mongolian-style hairdo. Johnson told jurors, “I urge you to read back the transcripts.”

Johnson said the store clerk, Mr. Pokeral, who had walked outside to see what was going on, walked back into the store as the fight continued. She said you see Jimenez look out and run toward the fight too.

“Beatty heard one of the men say as he pulled up his shirt, should we shoot this n—-,” asserted Johnson.

She said to pay attention to the video and what Fuentes is wearing. “When the cops showed up Beatty told them where they ran to and we know Fuentes was found with a Pepsi; Ozuna had a bag of Cheetos.”

Johnson said, “We know Beatty was upset, emotional but she described the hairdo to Officer Lara and both she and Nichols pointed out the men in the field line up.”

She said it was Fuentes who was seen by Beatty riding off with Nichols’ bike.

“So, when you put this all together with prior testimony, that’s the totality, so why not tell on the stand what they told cops that night? Well, we’re going to talk about gangs now…and to prove a gang case, you must prove it was to benefit or further promote a criminal street gang with a specific intent.”

Johnson said the expert, Perez, talked about the loyalty to fellow gang members and all of the incidents with some of the defendants before. She said the gangs put fear and intimidation into one another and stated that photos, Facebook pages and even the kites – scrolls found on Ozuna while in custody – point to affiliation. She talked about the gang tattoos photographed on three of the defendants and said they are earned, per Joe Perez’s testimony.

Johnson said these cases are hard because the witnesses are often reluctant to testify. She went over the previous testimony of Nichols and how he changed his story from what he told cops that night to what he testified to on the stand. She added this crime was done by known gang members and they yelled the gang slurs.

Johnson said that, in robbery, you have to deprive another of their property and that was met. She said the assault with great bodily injury was met because several men joined in the fight and began hitting and kicking Nichols, and “it meets the law,” she asserted.

“I ask you to find them guilty of the charges, thank you.”

Attorney Keith Staten, for defendant Justin Gonzalez, began with, “As you know, I began my opening with the case will be what the case is, and I am biased, I have to be. It took Ms. Johnson twenty minutes before she even mentioned my client. Not one, including cops, witness can say he was at the scene. Now, let me give you some basic rules. You decide what the facts are, use no bias. It is easy to say, birds of a feather, flock together so I use the BARD system. Beyond a reasonable doubt to tell you an abiding conviction is long lasting, not something you change your mind from when you wake up.”

Staten said use key instincts and judge each defendant separately.

He said, “How can we depend on a guy who read a report that someone else wrote with no evidence of them running, but the people who were involved did?”

Staten continued, “Cheetos never were an item stolen and they were never booked into evidence like told by Lara.”

He said, “And how can you aid and abet if you were not there? Justin was not at the scene, we have nothing but a kid in a black shirt, no other description.”

“You see the prosecutor didn’t mention the ‘c—,’ comment, and we know that is what made Nichols mad; you wouldn’t be a man if you did not stand up for your woman. He was called a tweaker but what got him was the bad name to his girlfriend.” Staten said.

“Now, let’s talk about Nichols and Beatty, they are not the kind of people you would have over to dinner, they are people who have had run-ins with the law,” he stated.

Staten said we know Beatty was afraid of Nichols’ temper and jealousy by his domestic violence conviction. But, he stated, the “prosecutor wants to discredit her own witnesses.”

He said, “Beatty had memory problems and she said she had been up from meth, and used hours or a day before the incident. But she only said the kid who asked for the dollar had a black shirt on, nothing else. That is what she told the cops that night.”

Staten, raising his voice and pointing toward Justin, stated, “That person who called her a name and asked for the dollar is NOT Justin Gonzalez!”

He said a black shirt was never mentioned through dispatch, on no video or car cam recording. He stated emphatically, “He was not there! And the Cheetos – Officer Lara stated Wright booked them into evidence and Officer Wright said Lara did…a straight lie!” Staten said, “No Cheetos were ever booked!”

Staten said the only description cops had was men in red and white shirts. He said, “Justin has no tattoos, none! And he had a hat on that night.”

He asserted, “You are not going to knock someone in the head and just stand around; the guys who did it ran away. Cops say over the radio they found the kids because they said they found them eating their groceries. Beatty heard that and believed them. She assumed they were the guys because she believed the cops, but that was planted in her head.”

Staten said, “You heard Det. Ney’s testimony, he said they were on the street to make an arrest, they didn’t investigate.”

Staten wrapped it up with, “Lack of tattoos is huge…and the photos of Justin with his cousins flashing gang signs is freedom of expression, nothing more.”

He stated, “Perez says gangs put fear but his testimony was to invoke fear, you can’t let it. We know Nichols attacked first and this is no specific gang-related incident, he dropped his groceries during the fight. Nothing Perez said proves Gonzalez was there, he had no tattoos as described by Beatty. He didn’t see him naked, did he?”  he asked, as the jurors giggled.

Staten said, “It’s like dolphins in a net, sometimes you get tuna… do what you are supposed to do, the facts and the law will lead you to a not guilty verdict. Dr. Davis proves the science of how we recall things, as humans, and Perez relies on what people tell him.”

“Judge each person individually; the prosecutor says we have to take care of the community, but we have to take care of this case only,” he said as he thanked the jurors.

Bob Spangler began by reiterating the story of the mullets seeing the elephant in the room. He said, “Remember how I told you about seeing the elephant in the room? And how no one saw it?”

He said, “You can say, I don’t know, there were three predominant people who testified in this case.” Spangler stated that Nichols told the police some were white but he could not see who was hitting him because he was focused on the fight. He said Nichols told the cops it was about ten men who were there, but he had no details of the men other than Hispanic males, 16 to 30 years old.

Spangler stated, “Nichols did not identify them, he said he could not, he was busy fighting, and he testified the police absolutely lied in their report.”

“Pokeral, the store clerk, also said it was too dark to see that night, he could not see who was involved and Beatty does not support all circumstances in Det. Ney’s report. It is impossible for Fuentes to be involved, you saw on the video he walked back into the store in under a minute or two,” he said.

“We have the conclusion of – we don’t know! Spangler asserted.

He said Det. Ney never recorded anything. “We don’t know how he got to the store or how he left, walking, a bike or a car. Perez used an improper use of gang testimony, he did not know, does not know what any gang member was thinking.”

He said, “The best you can get is Fuentes was drinking with someone that night, by the video.” He stated Nichols said it all happened too fast and everyone scattered. He said Nichols did not intentionally lie because he was scared on the stand, he just didn’t remember. He said, “He also told you he was not robbed, he told you it was just a street fight, Beatty never told the cops anyone said they were taking his bike. You were told Nichols, Beatty and Pokeral were all scared but Nichols said he was already labeled a snitch, what did he have to lose?”

“Beatty said they planted the seed in her head, Nichols said if he could identify them, he would, he is not afraid.” Spangler asserted.

“I want to thank you but I implore you NOT to believe the elephant in the room the DDA wants you to see, find Fuentes NOT guilty,” he ended, thanking them.

Defense Attorney Ava Landers, representing Anthony Ozuna, began with, “Good afternoon, as you know, I represent Ozuna and in the beginning, I told you he was not there. Nichols sat in the witness chair and I had him take a look at Ozuna and if he had taken anything from him, he told you admittedly, he did not tell Officer Lara it was he who lifted his shirt, in fact, he told you Lara was lying. All that we know is the guy had on a white shirt. No details, did everything stop when Ozuna allegedly said, should we shoot this n—-? did they all stop and take a look at who said that and get a good description of him? Does that make sense?”

She stated, “They don’t know who said that, once the comment was made to Beatty, the fight was on!” She said dispatch said it was men wearing red, and the only one wearing red was Roa, who was not arrested. Ozuna had on a white shirt that night, with a black hat, why didn’t they get that?”

“If Ozuna was wearing a hat when cops rolled up, then where was it during field line up? I want to focus on Dr. Davis’ testimony. She talked about clothing being a factor in misidentifying a person.” Landers stated.

“Nichols was busy defending himself, he’s there fighting, and he did well, he knocked two of them out,” she stated.

Landers says, “Pokeral said numerous times, he could not see those boys in a fight and he kept saying it. You have to look at this investigation. None of them went inside to ask Pokeral what happened on the night of the incident. In fact, it took nearly a month, three weeks later, for Det. Ney to go get a statement.”

She said, “And Pokeral is not afraid! No evidence of anyone intimidating him, he told you he wasn’t scared. He said he was nervous to talk in court, even with an interpreter. He told you himself, they were a bunch of boys to one, but he could not see.”

She said, “Let’s turn our attention to Officer Lara; he never followed up, he never asked about tats, hair color, how heavy, skinny any of them were. He had the option of recording, he chose not to.”

Landers said she wanted them to use their common sense. She stated the prosecution wants you to believe the alleged victim and Pokeral lied. But, she said, “If you don’t know what to believe, then you cannot convict.”

She said Pokeral had no reason to come to court and lie and none of the gang stuff is evidence that Ozuna committed a crime. She said he has no criminal past and his tattoos are not gang-related.

“What happened in this case has nothing to do with Ozuna, nothing to do with gangs, even though you heard a lot of scary stuff from Perez,” Landers said.

She asked the jurors to find him not guilty.

Last up was the attorney for Jose Jimenez, Jeff Raven. Raven began with the same video he showed in his opening.

“Ladies and gentlemen, my name is Jeff Raven and I represent Mr. Jimenez. There is a long history of groups being demonized as far back as the Salem Witch hunts – Asian, black and religious groups. It’s unfair to discriminate.”

“If someone is a gang member, they have the same right to be presumed as innocent as a school teacher, doctor, etc… I ask you to take a moment and reflect on that.”

Raven, pointing out in the video, “You see Fuentes, Jimenez and Roa walk into the store, did one of those guys say, ‘tweaker,’ to Nichols, if so, which one? Because those things matter!” he said boldly.

He said, “It’s an intellectual exercise to stop speculating or assuming what you know, and focus on what we do know. Look at the video, mind you, it’s Roa’s 21st birthday. Fuentes is smiling, looks like he having a good time. Fuentes even appears to be having a conversation with Pokeral, smiling, saying hello. We are going to talk a lot about intent. When they came into the store, they were not spoiling for a fight that night.”

Raven, voice getting louder, stated, “Someone insulted Nichols’ girlfriend outside, we know it was not Fuentes or Jimenez, because the video shows them in the store.”

He said, “Did Fuentes run out to assist in felonious activities of a gang? Gang members are people, they do what people do!”

Raven stated that Fuentes stood there looking, trying to figure out what was going on and then ran toward the fight, and within a couple minutes, he is seen walking back inside the store.

“Is Beatty a liar in court but a truth teller on the scene? You have got to be careful…Pokeral said it was ten guys when he walked outside to see the fight and Nichols said most were wearing red shirts,” Raven stated.

“If you want to accept unrecorded statements, then you examine the facts and rely on facts beyond a reasonable doubt,” he asserted.

Raven, getting animated, put on a display of how the fight could have happened. He asked jurors, as he swung in the air, “Is it fair to say, Nichols takes one hit, he knocks one out, another hit, he knocks a second one down, and then they all begin hitting him and say, let’s take his snacks?” The jurors giggling, being entertained by Raven’s reenactment.

Raven stated, “If I’m getting beat up and my friends aid me, it is defense… what is in Fuentes and Jimenez’s mind is critical, it’s the law and you have to figure it out.”

He said, “The prosecution needs to prove the case without recorded statements because it is the out of court statements that were not recorded.” Raven showed the jurors the blonde lady who walked outside to see what was going on. She looked for a brief moment and then left.

Raven exclaimed, “Thank Goodness for this video! How Jimenez was involved, they don’t know, they cannot answer, witnesses were not even asked these questions. Pokeral says he never told Det. Ney the guy with the tattoo on his head ran to get involved with the fight, he said he could not see where Jimenez ran to because it was too dark and he was focusing on the fight.”

He said, “The prosecutor tries to draw a conclusion of fear…”

Raven said, “You start speculating, assuming without evidence and YOU cannot do that!”

“Pokeral is believable, it’s consistent with his statements, no cooperation of witnesses or later identifications. We don’t have a recording from that night, we don’t know what was said between cops, you have to hit the button, and we don’t have that recording,” Raven emphasized.

“These identifications aren’t reliable because we have no details, no descriptions or certainty of what was even said. Now, look at Jimenez, he walked back into the store, smiling, as if to say to Fuentes, I don’t know what just happened. They leave the store within seconds and they are not running. People who commit crimes, gangs, run from cops,” he stated.

Raven reminded the jurors about Nichols and Beatty saying on the stand that they could not remember, and it is believable. He said Nichols had no reason to lie on the stand and he told jurors that during his testimony.

“I submit to you, Jimenez never had intent to rob or assault that night, they were not there spoiling for a fight. If I take a bat and swing at you, missing, that is intent to do great bodily injury. Mr. Nichols only had blood on his nose,” he stated.

“Make sure you have an abiding conviction with logic and objectivity. No identification is supported and these defendants here are not them!” Raven said boldly, “Find them not guilty!”

Raven ended his closing with, “Thank you for your time, patience and service.”

It was in her rebuttal closing that Deputy DA Robin Johnson would throw a curve ball. She began with, “It doesn’t prove anything if it’s things the cops did not do, the officers deserve credit for their effort. There are a number of things I will urge you to re-read… I am here to represent the state of California, to say we are unbiased would not be true, we all are! Nichols changed his entire description. Mr. Staten said that I said, tell me one Norteño that doesn’t have a tattoo, that is misstated, not what I said.”

Johnson went on to say, “Pay attention to that time stamp on the video Raven showed you, when Raven tells you that Fuentes is outside, there is more time than he shows you on that video.” Johnson had not mentioned this before.

She told jurors to re-read what Nichols said. “He said he never lost sight of where they ran, and that is misquoted too.”

“Another statement made by Ms. Landers is, “Beatty picked up Nichols’ bike and moved it, that is not what she said, she said she moved her bike, misquoted too.” Johnson stated.

“Read back Lara’s testimony, he never said everybody had on red shirts, remember neither one of the alleged victims called the police so they didn’t give a description over the radio.”

She said, “Just consider that Fuentes and Ozuna had the Pepsi and the Cheetos.”

Johnson talked about the robbery and assault charges. She said, “The items have to be taken by threat or force and intent to deprive the person of the property permanently. Beatty said they rode towards Rico’s, easy to conclude they never intended on giving them back.”

She said, “Let’s go to assault, we aren’t talking about one person, we are talking about multiple hits, and people. If the victims thought this was an everyday street fight, then why bang on the door of Taco Bell and ask for help….that’s what you do when you are scared!”

“This got violent when gang slurs were thrown, Now I am asking you to look at all the evidence and hold them accountable, find them guilty!” Johnson, appearing exhausted, thanked them and sat down.

Deliberation began early Thursday.

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