By Alex Tuchman and Ned Meiners
SAN FRANCISCO, CA – San Francisco County Superior Court Judge Eric Fleming Wednesday refused to dismiss charges of conspiracy to commit murder against co-defendants, 21-year-old Rodrigo Tellez and 21-year-old Bryan Moreno.
Tellez and Moreno along with Oscar Ticas, are accused of the March 16, 2020, fatal shooting of Demondre Perkins. The shooting occurred while the victim was inside of the restaurant Al Hamra on 16th Street in San Francisco.
While there is video of the incident which places the defendants with Oscar Ticas, the shooter, the defense asserts there was no conspiracy among them.
According to Assistant Public Defender Mark Jacobs, attorney for Moreno, “This was spontaneous. There was no conspiracy of any kind.” 
On the afternoon of the shooting Tellez and Moreno arrived at 16th and Mission where they met Ticas. Although the three men knew each other, it is unclear to what extent. Jacobs asserted that his client hardly knew Ticas at all.
In spite of this, Jacobs stated “a lot of the preliminary hearing was spent talking about gangs.”
Deputy District Attorney Aaron Laycook clarified that he did not believe the incident to be “a gang hit” but had brought up the subject of gangs to show there was prior contact between the individuals.
Judge Fleming had the last word on the subject, stating, “Let’s be clear, there’s no evidence they were actually gang members.”
Laycook elaborated that agreement to commit murder can be quick, arguing that the men had sufficient time to come to an agreement. The “degree of coordination is significant,” supporting an inference of conspiracy to commit murder.
In spite of questions about the association of the co-defendants, what happened next is not in dispute. All three men are captured in the video approaching Perkins. Moreno punched the victim before both men entered the restaurant, Al Hamra. Tellez then approached the victim to back up Moreno.
At this point Ticas entered the restaurant and can be seen on video shooting Perkins.
While there’s little question of who pulled the trigger, according to the defense there’s no proof Moreno or Tellez had a gun or even knew that Ticas had one.
At the preliminary hearing an officer testified that, prior to Ticas brandishing a firearm, there is no gun visible in any of the surveillance footage leading up to the event.
The defense pointed to the fact that both men were in front of Ticas when the gun went off. “Mr. Tellez is lucky he didn’t get shot in the back,” declared Jacobs.
George Borges, attorney for Tellez, was in agreement. “That’s a pretty big leap, suggesting that punching somebody and gunfire breaks out behind you is conspiracy to commit murder.”
In his opinion, any assertion that Moreno or Tellez knew Ticas was in possession of a firearm is “rank speculation.” The evidence may point to a conspiracy to commit assault, but Tellez and Moreno’s actions do not support an inference that there was conspiracy to commit murder.
In absence of any further evidence that the co-defendants had foreknowledge of the shooting, the defense argued there could be no conspiracy.
“It is black letter law that prior association is insufficient to prove conspiracy,” explained Borges.
Both defense counsel pointed to common sense as well, that it would be unreasonable to conclude that these men intended to commit murder in broad daylight, in front of several witnesses, and in front of a camera.
The defense asserted that this is all created to “get these two guys out of the way so that they don’t become big players.”
This was not enough to sway Judge Fleming, who decided not to dismiss the conspiracy charges. He questioned the state’s theory but because, in his opinion, two different reasonable inferences could be drawn from the evidence, it would be impermissible to dismiss the charge at this point.
Fleming stated it is “not his duty” to decide which inference is correct, and said he will leave that task to a jury.
Moreno and Tellez remain in custody. Their next hearing is June 30.
Ned Meiners is a Legal Studies student at City College San Francisco. Originally from Maine, he currently resides on Bernal Hill in San Francisco.
Alex Tuchman is a third year law student at UC Hastings. She is originally from Los Angeles, California.
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