According to all witnesses who testified, it was at closing time at the popular bar on a Saturday night in September of 2009 when a fight broke out in the parking lot between two groups of drunk people. It started when Martin Ventura confronted Heredia after Heredia had approached and made advances to Martin’s wife Rosie, who had been waiting beside a taco truck. The two began fighting and Heredia beat up Martin. Security broke up the fight and the parties went to their cars. Martin and his group got into their red Ford Expedition. That vehicle remained stationary for a minute, after which it drove towards the exit. Heredia taunted and shouted out to the vehicle, and removed his shirt with his arms raised. This act may have cost him his life because the vehicle stopped on the road outside the parking lot, reversed towards Heredia and shots were fired from within it towards Heredia. Mr Heredia was hit in his torso and neck, and died at the scene.
In addition, after the shots were fired from the car, one of the security guards fired something like eleven rounds at the vehicle, hitting it a number of times.
There were supposedly four individuals in that car who had gone out together that night. Mr. Solis was one of them, Martin was another, plus Martin’s wife Rosie and an individual known as Lola (a male).
The case was futher complicated because Martin and Rosie fled to Mexico within a few days of the incident and were unavailable to testify. The defense would argue, with witnesses to substantiate, that Martin, and not Mr. Solis, was the actual shooter.
A key witness in this case is Jorge Gomez, a close relative of Martin and a friend and colleague of Mr. Solis. Mr. Gomez, however, was not present that night. After a seven-hour interrogation by Detective Eugene Semeryuk of the West Sacramento Police Department, Gomez pointed to Mr. Solis as the perpetrator.
But Mr. Gomez has immigration problems, and needed the police to forestall an ICE hold multiple times. He agreed to make a pretext phone call to Mr. Solis from the police department, with Det. Semeryuk guiding him. That taped phonecall is ambiguous evidence, at best. So is the lengthy videotaped interrogation of Mr. Solis, which is a good illustration as to why interrogations and confessions ought to be treated as suspect – Mr. Solis never claimed to have shot anyone, but the process clearly disoriented him.
The jury divided on these points. The Vanguard spoke to the jury foreman following the trial, who was the ringleader of the jurors who voted to convict and who, as we will show, based his assessment on a false understanding of the evidence. This juror made grave errors about critical facts.
Prosecutor’s case
The prosecutor put together a scenario, by process of elimination, as to who was the driver.
“There are four possibilities – almost just a process of elimination,” she said. First she spoke about Martin. “Numerous people put him as getting in the back passenger seat.” She said that both security guards say that Martin, Rosie’s husband, got into the back of the car.
Ms. Johnson spoke about Elvia Salcedo, another patron of the nightclub that night whose car was parked adjacent to the shooter’s car. She’d been retrieving something from her vehicle when she saw an angry man with a wound on his forehead walk past her, bump into her and get into the back seat of his vehicle, the red Ford Expedition. In court she identified that man as Martin Ventura. When he reached his vehicle, she had heard the man say “Give me the gun.” Ms. Johnson pointed out to the jury that Ms. Salcedo’s claim that this man was the shooter is “based only on the words he’d said.”
Ms. Johnson argued that only Martin was seen bleeding outside the car. Blood was found in the parking space that matched that of the same unidentified male whose blood was found at the back lower end of the front passenger door. She said that is consistent with someone in the seat behind, crouching down low and leaving blood there. If that person had been in the front passenger seat, he would have to contort backwards to leave the blood there. That put Martin in the back right seat.
She says “Lola” likely was in the seat behind the driver. She pointed out that the defendant had mentioned that no, he himself was not in the back seat of the vehicle. DNA was found in that seat and it did not match the defendant. It was male DNA and different from that found on the passenger door. This implied that it must have been Lola, who was known to have a slight wound on his hand.
“Now to the [front] passenger seat. The defendant and Rosie are the only two left in the car. There are only two seats left in the car.” She said we know that the defendant lied [at first]- we know that he was in the car because he finally said he was, in the interview. We also know, via the security guards, that Rosie had gotten into the car. One witness had said Rosie had told her that the burns on Rosie’s face came from the driver shooting across her. Another witness who saw Rosie after the incident testified that the marks were on Rosie’s face on the left side only. Ms Johnson said that everyone described the shots as coming out from the passenger’s side, and that Rosie must have been seated in the front passenger spot. “That leaves only one person that could have been the driver of that vehicle – that’s the defendant.”
She said that fingerprints were found on the driver’s side of the vehicle in a place where the driver would stand or touch the vehicle. We don’t know when they were made. They are the defendant’s prints.
“By standing back and taking all these little pieces of evidence, there are several theories of liability, several ways that the defendant can be found guilty.” She said the first way is as the perpetrator. She said that Gomez had testified that he’d seen the defendant with a .357 Magnum multiple times and he said that the defendant usually kept it at the back of the truck when he went to dances. One other location that the prints were found on the shooter’s vehicle was on the rear lift-up window at the trunk.
Prosecution’s curve ball:
All along, the prosecution had argued that Mr. Solis was the shooter. However at the very end, during closing comments, and perhaps sensing a weakness in the case, the prosecution suddenly introduced the notion that Mr. Solis might not have been the shooter, but rather aided and abetted the shooting.
Ms. Johnson argued, “If you find somehow that the defendant did not shoot…” She said the defendant drove the vehicle around the lot, and stopped near the victim. She said that an aider and abettor is someone who knows what the perpetrator intends to do and does something to assist him. She said that the aider and abettor is as guilty as the perpetrator of first degree murder and all other charges, except for the charge of personally discharging a firearm.
She stated that aiding and abetting can be done “also by providing the gun.” She stated that even if it was “that he gave it to just fire out the window to scare him” that a “natural and probable consequence” of that is that it would cause death to a victim.
She also argued that they could all have different theories about how the crime went down, and they only had to agree unanimously on the point that Mr. Solis was responsible. Defense Attorney Dean Johansson argued that this was improper, but was overruled by Judge Mock.
Defense’s Argument
“Mr Solis, at best, put himself right behind the driver,” Mr. Johansson argued. Jerry Chisum, the defense’s expert witness who is a renowned crime scene reconstruction expert, stated in his testimony that the seat right behind the driver was the safest spot in the vehicle. On January 14th, when Mr Solis was dragged out of bed by authorities, they examined him and found no recent wounds of any kind. The search of Rosie’s residence turned up bloody t-shirts, with blood on the right side of one, in the armpit area in particular.
Mr. Johansson spoke of the witness, Elvia Salcedo: “If you remember, here’s this lovely lady and she’s sitting there and she raises her hand. She’s raising her hand and she wants to ask a question. ‘Where’s the shooter?’ ” She revealed that the shooter was not in the courtroom.
“The theory of the case has changed constantly. Do you see how the rules have changed underneath us? No longer is she [Ms. Johnson] even arguing that the defendant is the perpetrator,” Mr. Johansson told the jury.
He said that Ms. Salcedo was demonstrating what happened. “She says, the shooter, he’s with Rosie, he’s bloody, angry, and now he’s going to return in kind what was done to him. He gets his gun and goes about it.”
“That’s a pretty drastic measure folks. He could be the only person who was so charged and angry.”
Ms. Salcedo says of the defendant “I’ve never seen this man before now, till this day in court.” That was the first witness we heard from. The next was Victor Flores, the security guard, combat-tested, a trained observer.
Victor Flores said he saw Martin get into the right rear seat. He remembered Mr. Solis being there that night. Mr. Heredia had his shirt off and was calling for Martin to come back. Flores saw muzzle flashes from the right rear area. He then fired a tightly-bundled group of bullets, with 2-3 bullets not accounted for. They must have left the vehicle in the bodies of people – remember the bloody clothing found at Rosie’s residence. And Flores said the driver was a female Hispanic with shoulder-length hair.
Mr. Johansson pointed out that Mr. Lopez (another friend of the victim) identified Gomez (the witness who was supposedly not even present) as the shooter, and circled his picture in the photo lineup.
The key witness for the defense is Jennifer Villasenor, who saw Martin’s sketch on TV, then talked to Detective Semeryuk. She told him that she had talked to Martin Ventura and Rosie, and they both admited that Martin did the shooting and Rosie was driving. Rosie said the gun was kept in the side panel. Rosie described how she handed the gun to Martin and how he shot the victim. Villasenor said she is now afraid to go to Jalisco [Mexico], where the pair apparently are.
Jorge Gomez showed up at the West Sacramento Police Department and talked to Detective Semeryuk. He was interrogated for seven hours and was fingered as the killer, being shown the six-pack with his photo circled. He was given the option that it’s him, or someone else. Mr. Johansson said that snitches always save their own skin, and that you can’t base a case on a liar. “Gomez is the one that started this entire case for Semeryuk,” he argued.
Mr. Johansson put this in perspective for the jury. He said, “Do you want to hear what the real crime is? The statement from Veronica Delgado that it was the “roommate” is not in any police report. Jennifer Villasenor’s statement is also not in the police report anywhere.”
Detective Semeryuk, while on the stand, was asked why he did not put any of this in a report. He responded that that’s why he’s here in court today. Johansson replied that he is only saying this now because he is being asked about it, and that he would not be revealing this information on his own initiative.
About Ms. Delgado, Mr. Johansson argued, “She tells Semeryuk that Gomez told her one of his roommates shot the guy. Think about that. Let that sit.” Again, Jorge Gomez and Martin Ventura were roommates, and Mr. Solis was not.
We heard testimony from a Mr. Villanueva who had become friends with Mr. Gomez in jail. Gomez had opened up to Mr. Villanueva after a while and told him that he had driven his roommates to the border, that he did it for money and the DA is going to help him with his immigration. We heard from Anthony Salazar, a 15-year-old boy who had who lived at his grandparents’ house where friends and relatives would frequently gather to party, including Martin and Rosie. He testified that a few days after the incident, as he had been working in his yard, he had seen Martin and Rosie leaving his residence in a tan/grey-colored Dodge Durango. He stated that Mr. Gomez and another lady were in the front of the vehicle. Weeks later, when Detective Semeryuk had gone to visit Mr. Gomez, he had noticed that Mr. Gomez’s girlfriend , Ms. Delgado, drove a Dodge Durango that was tan/grey in color. Mr. Salazar testified that he has not seen Martin or Rosie again since that day.
Thus, from the defense’s perspective, here is what happened. Martin was in the fight, he got beaten up and was very angry and felt humiliated. He was in a rage and went back to the car, got the gun from Rosie and then, from the car, shot and killed the man who had beaten him up and was was now taunting him. That corroborates the testimony of the witness who heard Martin ask Rosie for the weapon.
It also corroborates the conversation that Ms. Villasenor had with Martin from Mexico, as well as the jailhouse conversation between Gomez and the other individual.
We will discuss more about Detective Semeryuk’s role in this, but he basically put enough pressure on Gomez, who feared deportation and was being fingered as the shooter. So Gomez broke and pointed to his friend, Jesus Solis, who was readily available to the authorities, rather than to Martin and Rosie, who were not. Detective Semeryuk played a role in attempting to hide exculpatory evidence from the defense. More on this later in the week.
How some of the Jury Got it Wrong
Juror 1 stated that he at first believed Mr. Solis was innocent. As he was hearing evidence however, he changed his mind . The playing of the pretext phone call and the videotaped interview with Mr. Solis at the police department were, for him, the turning points.
This juror explained that to him, those two pieces of evidence put Mr. Solis in the car, and from there he was able to put Solis in the driver’s seat by a process of elimination.
The juror explained that the blood found in the back seat and the blood found on the front passenger door (from someone in the seat behind, who had crouched down and forward) ruled those two places out as where Solis could have been sitting. Also, since Rosie had powder burns from a gun, that would mean she was in the right side of the vehicle, and the only seat open for her was the front passenger seat.
This left one spot where Mr Solis could have been sitting, and that was the driver’s seat, meaning he had been driving and had reversed the vehicle back towards the victim – and was therefore guilty as aider and abettor, at the least.
The juror did not believe the testimony of Ms. Villasenor, the lady who stated she had spoken on the phone to Martin and Rosie, who were in Mexico. He argued that she had a reason to lie because her husband was in trouble on domestic violence charges, and she was trying to help get leniency for him.
The juror also did not believe the testimony of Mr. Flores, the security guard, who had made the statement to the police that he’d seen a hispanic female with shoulder-length hair in the driver’s seat.
The juror made contradictory statements about Detective Semeryuk. One the one hand he said that Semeryuk was a goon. On the other hand he said that the detective had done a thorough job, but wasted an enormous amount of money.
However, the juror was wrong on key points.
The pretext phone call itself, placing Solis in the car and potentially as the driver, was problematic as evidence. It was entirely in Spanish, and the only translation the jury had was in the transcript provided by the DA. It was not a court-approved translation. And there was little possibility of verification, as the conversation in Spanish was muddled, and nearly inaudible, so that even the interpreters in the courtroom relied on the transcript to follow what was going on. Even with all of that, there was never an admission to the shooting by the defendant.
Juror 1 got the facts wrong in his process of eliminating locations for Mr. Solis. First, the blood found in the back seat was on the right side of the vehicle, on the back rest – not on the left side, behind the driver. The only blood found in the front section of the car was on the inside of the front passenger door. The two blood samples were from two different unidentified males, none matching Solis. One of those samples also matched blood found on the ground at the parking space where the vehicle was parked outside the nightclub, indicating that that person had also been bleeding outside the vehicle before entering it.
Mr. Johansson had argued that the safest place in the car was the left rear seat that is directly behind the driver, since this was the only place not in the firing line of the bullets from the security guard – and that consequently anyone sitting there was likely not to be injured. When the authorities arrested Mr. Solis, a thorough examination of him revealed no injuries.
The juror’s mistrust of Ms. Villasenor’s testimony makes little sense, in light of the facts. In actuality, she seemed very believable. The prosecutor had tried to make it seem as though she had only been interested in helping with the case when it seemed that she’d get help from Detective Semeryuk with her husband’s case, but that was not the situation at all. Her inclination to help with the case and her actions were independent of the timeline of her husband’s case.
The juror’s comments about Det. Semeryuk were strange. He argued that Semeryuk was thorough, but how could that be when he failed to report exculpatory evidence in his reports? Semeryuk also selectively sent only the defendant’s fingerprints to be matched against those lifted from the car, not those of Gomez who’d been circled on a photo lineup as the shooter by one witness.
The juror also believed Gomez was in the car, which neither side in the trial claimed.
The strangest portion of the trial is that this juror put a halt to the entire trial because he wanted to leave early to see the 49’ers game when they were on Monday Night Football. He sent a note to the judge asking to be excused early, postponing the trial till the next morning, just so that he could go and see a football game in the Bay Area.
This juror, during key testimony of Gomez, when all the rest of the jury were turned with their heads and bodies towards the witness, keenly listening, was seen looking at the ceiling, picking his nails, just totally uninterested. During the playback of the pretext phone call , when all other jurors had their eyes down on the transcript, he was again looking about, seemingly not interested.
When we spoke to him post-trial, his demeanor was that of a know-it-all, showing unquestioned confidence in his comprehension and analytical ability.
Concluding Remarks
The DA’s Office will attempt to try this again. From our view of this case, however, there is virtually zero chance that there will ever be a conviction.
The DA’s Office has likely accused the wrong individual of the crime. They would be better off trying to extradite Martin and Rosie, getting their statements and then figuring out who actually did shoot the victim.
In the coming days, The Vanguard will look at the role of Detective Semeryuk in this case.
—David M. Greenwald reporting
This was clearly a difficult case, period, bc of the confusing fact pattern. It becomes even more muddied when various agendas of witnesses are taken into account.
dmg: “The juror’s mistrust of Ms. Villasenor’s testimony makes little sense, in light of the facts. In actuality, she was very believable.”
Whether a witness is “believable” or “credible” is entirely up to each individual juror, and is highly subjective.
dmg: “The DA’s Office likely has the wrong individual fingered for the crime. They would be better off trying to extradite Martin and Rosie, getting their statements and then figuring out who actually did shoot the victim.”
The “shooter” is not necessarily the only one who committed a crime in this case. Anyone who aided and abetted would also be guilty of a crime.
How much money was spent on this trial? A unknown secret, if the DA can get a murder trial to over $1,000,000, he gets money from the State to help pay.
Wonder why our government is broke, incentives like this that encourage government to waste tax payer money.
Can’t have people shooting and killing one another, but its important to punish the right person.
DA went after the easy target, forcing the “evidence” to agree with the simple conclusion.
DA finds it more important to Get somebody even if it is not the right person.
The System is distorting evidence (actually hiding evidence) in order to improve the odds of getting a conviction.
“The pretext phone call itself, placing Solis in the car and potentially as the driver, was problematic as evidence. It was entirely in Spanish, and the only translation the jury had was in the transcript provided by the DA. It was not a court-approved translation.”
How is it possible to not have a court-approved translation. There must be court appointed Spanish interpreters.
There are and were interpreters, but the transcript was “unofficial” which works okay when the version is in English, but less so when it’s in Spanish.
Maybe they went after Mr. Solis because the shooter was in Mexico. Maybe it was because Mr. Solis was an easy target. Maybe it was because they had a witness they could coerce via immigration status into pointing the finger at Mr. Solis. The problem is unlike common perception the DA’s office is supposed to be the first administrator of Justice – that means actually looking for the truth, not out for a conviction at any cost.
[u]IF[/u] Mr. Solis aided and abetted a crime then the DA’s office should only charge him for that – which is nothing like actually shooting someone. There is NO EXCUSE for the DA to charge Mr. Solis with murder and once evidence comes to light hide/change whatever they need to do to get a conviction. Don’t you people see something wrong with that!
lyah: “IF Mr. Solis aided and abetted a crime then the DA’s office should only charge him for that – which is nothing like actually shooting someone.”
From Wikipedia: “At law, an accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense. For example, in a bank robbery, the person who points the gun at the teller and asks for the money is guilty of armed robbery. However, anyone else directly involved in the commission of the crime, such as the lookout or the getaway car driver, is an accomplice, even though in the absence of an underlying offense keeping a lookout or driving a car would not be an offense.”
If Solis gave the gun to a shooter, urged a shooter to kill the victim or anything of that nature, Solis would be just as guilty of the crime of murder as if he himself had pulled the trigger. An analogy is the crime of murder for hire. The shooter and the person who hired the shooter are both eligible to be tried for the crime of murder.
Another interesting tidbit from Wikipedia: “The fairness of the doctrine that the accomplice is as guilty as the primary offender has been subject to much discussion, particularly in cases of capital crimes. On several occasions, accomplices have been prosecuted for felony murder even though the actual person who committed the murder died at the crime scene or otherwise did not face capital punishment.
One of the most notorious cases of this type was the 1952 case in England involving Derek Bentley, a mentally-challenged man who was in police custody when his sixteen-year-old companion, Christopher Craig, shot and killed a police constable during a botched break-in (News Report [1] ). Craig was sentenced to be detained at Her Majesty’s Pleasure, since as a juvenile offender he could not be sentenced to death (he was released after serving ten years), but Bentley was hanged. The incident was dramatized in the film Let Him Have It, which is what Bentley allegedly said to Craig during the incident, which can be interpreted either as telling Craig to shoot the policeman, or to give him the gun. The hanging of Bentley led to public outrage and the eventual abolition of capital punishment in the United Kingdom.”
As to “abetting”, again the Wikipedia notes: “An accomplice differs from an accessory in that an accomplice is present at the actual crime, and could be prosecuted even if the main criminal (the principal) is not charged or convicted. An accessory is generally not present at the actual crime, and may be subject to lesser penalties than an accomplice or principal. An accomplice was often referred to as an abettor.”
There was no evidence presented that that is what happened and the idea didn’t even emerge until closing arguments.
dmg: “There was no evidence presented that that is what happened and the idea didn’t even emerge until closing arguments.”
I’m assuming the DA was making the argument that the very act of getting into the car with people who clearly had in mind to kill the victim was tacit agreement the defendant wanted to further the crime going forward. Obviously the jury wasn’t buying it – figuring the defendant was just along for the ride, in the wrong place at the wrong time, and the real shooter was long gone to Mexico.
To some extent yes. The DA had a theory that he was the shooter and also a theory that it was his gun and he supplied it to the shooter, but no nexus showing that he intended and knew that a crime would be committed. I know they will try this case again, I just don’t see how they will ever get a conviction in this particular case.
First of all if the DA tries to refile this, the first motion I would file would be to dismiss for outrageous government conduct for hiding the exculpatory evidence from veronica delgado and jennifer villlasenors. Knowledge to the detective is imputed to the DA. There is a pattern and practice in the county of hiding exculpatory evidence. Then, to E. R. Musser: Really? Wikpedia and a 1954 movie are your referinces? aider/abetter, accomplice and felony murder are all seperate criminal theories requiring seperate elements. You should not speak to educate as a lawyer when this is not your area of expertise. For example, felony murder applies when a felony is being committed, a murder occurs (maybe by accident, i.e. a bank robbery gone bad and a bank security officer kills a customer). The bad luck bank robber is liable for murder
for anyone who wants to know the legal elements for aider/abetter, accomplice (which requires corroboration which the others do not) and felony murder, the best place to get the proper information is on line by searching for CalCrim jury instructions.