UPDATED: Emotional testimony in hearing for 2011 drive-by suspects

Esmeling Bahena, 19, from Morgan Hill, sits in court at the San Jose Hall of Justice during a preliminary hearing for the Tara Romero case Thursday.

The second day of testimony in the preliminary hearing for four of the five suspects accused of killing Morgan Hill teen Tara Romero in a drive-by shooting Nov. 4, 2011 included an emotional recollection of that night’s events by one of the surviving victims of the gunfire.

“Last month a bullet fragment pushed its way out” of her stomach, where she was shot that night at the corner of Cosmo and Del Monte avenues in southwest Morgan Hill, 16-year-old Rosa Castaneda said.

“I still can’t run,” she continued through sobs in the witness stand Thursday. “I couldn’t even go to my mother’s funeral. I couldn’t even go to my best friend’s funeral,” referring to Romero, who was 14 when she was killed.

Castaneda, then 14, was comatose and in critical condition at Santa Clara Valley Medical Center for several days after the gunshot wound to her stomach. When she woke up, she learned that her mother had died of liver failure while she was comatose.

The preliminary hearing at the Hall of Justice in San Jose, which started Wednesday with testimony from a Morgan Hill police officer, will allow the judge to determine if there is enough evidence in the case to proceed to a trial. The hearing is expected to last up to eight days, according to authorities.

Defendants Ramon Gutierrez, 18 of Morgan Hill; Esmeling Bahena, 19 of Morgan Hill; Ricardo Diaz, 20 of Morgan Hill; and Fernando Mateo Lopez, 21 of Gilroy were present for Thursday’s testimony.

A fifth suspect, Primitivo Hernandez, 24 of San Jose, could not participate in the hearing because his attorney is in trial on an unrelated case in another court, according to Santa Clara County Deputy District Attorney Peter Waite. A separate preliminary hearing will be held for him at a later date.

All five suspects are charged with murder and attempted murder for their involvement in the drive-by shooting which took Romero’s life and injured three of her friends including Castaneda. The suspects are also charged with an enhancement for carrying out the crime for the illegal Sureno street gang.

Thursday’s hearing also revealed, for the first time, that at least three of the suspects admitted to police – the day after the shooting – they were directly involved in the crime.

Morgan Hill Police Corporal Scott Purvis testified that Bahena, Gutierrez and Diaz told him – while in custody at the Morgan Hill Police station – that all five suspects were in the Chrysler 300M sedan, carrying a handgun and a rifle, when they drove by the Village Avante apartment complex (adjacent to the corner where the shooting occurred). They drove to Lopez’ home in Gilroy earlier that night to pick up the weapons, but the three suspects also told police the group was not planning to shoot or kill anyone when they went out that night.

The three suspects also denied they were the ones who pulled the triggers, according to Purvis’ testimony.

They also told officers about an ongoing “beef” with local Norteno street gang members that started several days earlier, Purvis testified.

That ongoing feud included incidents of vandalism to the suspects’ property and one of their homes, according to Purvis’ testimony. One of the suspects – Bahena – had witnessed what he described as Norteno street gang members breaking windows on his mother’s vehicle. He also returned to his home one night on Barnell Avenue – where he lived with his mother – to find a window to the residence had been broken.

Furthermore, during testimony Friday, Morgan Hill Corporal Mario Ramirez revealed that Bahena had perpetrated a drive-by shooting outside the Village Avante apartment complex Oct. 31, 2011.

A nearby resident who was out trick-or-treating with her kids called police to report that shooting, Ramirez said. A vehicle drove by the apartment complex and fired a shot from a handgun toward two adult pedestrians, one who was wearing a red hat – a color that is associated with the rival Norteno street gang.

Police followed up with a search warrant and found a text message from Bahena’s phone to Lopez’ phone, reporting he had done a drive-by shooting at the apartment complex, Ramirez testified. No one was injured in that incident.

“I’ll tell you guys, but you can’t say (anything) because I could get in big trouble, or get killed,” for confessing his involvement in the Nov. 4, 2011 incident, Bahena told officers during an in-custody interview on Nov. 5, Purvis said in court Thursday.

He told police that one of “four or five” people standing on the corner of Cosmo and Del Monte avenues threw rocks at the Chrysler when the vehicle drove by with the five suspects inside.

“It got out of control. These guys just shot them,” Bahena told police, according to Purvis.

Diaz and Gutierrez also admitted they were involved in the drive-by attack, after attempting to lie about their whereabouts when police interviewed them, Purvis said. The three differed on details such as who pulled the triggers and where each occupant was positioned in the vehicle when they drove by the intersection. Police determined two of the suspects were carrying a .22-caliber revolver and a SKS assault rifle in the vehicle during the attack.

All five suspects were arrested hours after the shooting, after an officer saw the Chrysler leaving the crime scene and blow through a stop sign. Police caught up with the young men quickly at the residence on Barnell Avenue, and arrested them after a brief standoff.

The suspects sat stone-faced in court, wearing County Jail jumpsuits, during Purvis’ testimony.

Earlier in Thursday’s hearing, when he entered the courtroom and during Castaneda’s testimony, Gutierrez was seen smiling and laughing several times.

Interrupting Castaneda’s testimony at one point, Superior Court Judge Ronald Toff looked at Gutierrez and asked, “Do you find this humorous?”

“No,” replied Gutierrez.

“You’ve been smiling a lot through this testimony,” Toff said.

Castaneda, her long brown hair tied loosely behind her head, appeared to be staring directly at Gutierrez several times during her testimony.

“I don’t see what’s so funny to you,” she exclaimed to Gutierrez at one point.

The preliminary hearing was set back by multiple delays, including a claim by Gutierrez that he was mentally incompetent to stand trial for the crimes. A court-appointed doctor finally evaluated him and determined he was faking his symptoms, authorities said.

On Tuesday, when the hearing was scheduled to start, Gutierrez refused to leave the jail and go to court, Waite said.

Also shot in the drive-by shooting were Alicia Sotelo, 15 at the time, and Chris Loredo, 16 at the time. Both were shot in the leg. All three were friends of Romero’s, and all were students at Sobrato High School at the time.   

The four were hanging out that night with a fifth friend, Alex Chavez, now 16, who also testified Thursday. They were celebrating Chavez’ 15th birthday, which he said started at Morgan Hill Bowl.

Chavez was not shot, but he was standing next to the other victims when the incident happened. He said as soon as he realized the group was being shot at, he jumped to the ground and did not see the vehicle or anyone inside.

Castaneda’s and Chavez’ testimonies differed on numerous details, but the group ended up walking through the Morgan Hill Community Park after celebrating Chavez’ birthday, toward a convenience store near Monterey Road and Cosmo Avenue, and through Village Avante back to the intersection of Cosmo and Del Monte avenues.

They were standing there for a few minutes, socializing and waiting for a ride home from Chavez’ aunt, when the gunfire started and then quickly stopped, according to the testimonies.

Chaos followed the gunfire, with the victims screaming and trying to make sense of what happened and help each other at the same time, the victims testified.

While Castaneda said the group of teens had been drinking Smirnoff vodka and some had smoked marijuana just prior to the attack, Chavez said none of the victims had partaken in alcohol or marijuana that night. Castaneda also testified that the teens went inside the convenience store to purchase items, but Chavez said they turned around to go back through the apartment complex before arriving at the store.

The teens were not involved in any gang-related activity, according to police.

Castaneda gave Romero’s mother, Annette Nevarez, a long hug as she left the courtroom when her testimony was over.

Nevarez sat through the hearing holding an eight-by-ten-inch photograph of Romero in front of her, facing the courtroom. Romero was a freshman at Sobrato when she was killed.

“I’m glad we’re finally going to get justice for Tara, and for all of these kids,” Nevarez said after Thursday’s testimonies. 

This is a developing story. Check back in the coming days for additional details.