Jury begins deliberating fate of two men charged with
‘ambushing’ member of rival gang
By Lori Stuenkel
Gilroy – The fate of two men charged with ambushing a member of a rival gang in a drive-by shooting will to go to the jury today, after prosecution and defense attorneys conclude their closing arguments in the trial that began last Monday.
The jury will decide whether Israel Enrique Hernandez, 20, and Juan Hernandez, 23, no relation, are guilty of attempted murder and firing into an occupied vehicle. They are also charged with enhancements for committing a crime to benefit a criminal street gang – Juan Hernandez is an admitted member of the Sureño Eighth Street gang – and personal use of a firearm, and could face up to life in prison if convicted.
Deputy District Attorney Stuart Scott presented his closing argument Monday afternoon, saying the defendants were out to “ambush” a member of a rival gang when they committed a drive-by shooting Dec. 28, 2003.
He says Enrique Hernandez rode in the back seat of a car driven by Juan Hernandez, and fired three or four rounds from a handgun at a cream-colored Oldsmobile he thought belonged to a rival. The bullets struck houses along the east side of the 7800 block of Church Street.
Enrique Hernandez is also charged with assault with a deadly weapon, for throwing a glass bottle at a man walking in downtown Gilroy and striking him on the back of his lower neck.
Enrique Hernandez’s lawyer, Ric Squaglia, began his closing arguments before the evening recess, painting his client as fearful of the person in the car that approached them on Church Street that afternoon.
Scott said that assault, in which Enrique Hernandez got out of the car to pursue the man on foot, was the start of the day’s criminal activity for the two defendants.
“This is a guy who a little while later isn’t afraid to go capping rounds off in a residential neighborhood,” Scott said.
Scott later challenged Enrique Hernandez’s testimony that he fired the gun to scare the victim.
“He’s shooting down, not shooting up,” Scott said. “He’s shooting into the … victim’s car. … Are you trying to scare him? No, you’re trying to kill him. It’s not a defense that he missed. It’s not a defense that he has bad aim.”
Although the jury will have the option of convicting Enrique Hernandez on one of two lesser charges – voluntary attempted manslaughter or assault with a firearm – Scott said the defendants’ actions prove attempted murder. If they are guilty of assault with a firearm, then they are guilty of voluntary attempted manslaughter, he said. But that charge means the suspects’ lives had to have been in imminent peril.
“That means that second, you’re going to die,” Scott said, adding that that would not apply to someone in the back seat of a nondescript blue sedan.
Squaglia acknowledged that his client is guilty of firing the gun, as Enrique Hernandez admitted during his testimony. Hernandez fired those rounds because the person driving the car had shot at him twice previously, Squaglia said.
“He didn’t call the police. … People who don’t speak the language, who come from another country, are a little suspicious, a little afraid,” Squaglia said. “They’re not quick to call the police.”
Both defendants are Mexican nationals.
Enrique Hernandez sat at the defense table in a gray pin-striped button-down shirt, his hair closely cropped, and listened to the arguments translated by a court interpreter.
Squaglia tried to discount the gang enhancement for the assault with a deadly weapon charge. The victim was wearing a red shirt by coincidence, not necessarily because he was a gang member, he said. Also, the gang-related items police said they found in his room are not proof Hernandez is in a gang, he said.
According to Scott, the defendant does not need to be part of a gang, but only needs to have committed the crime “in association with” members of a criminal street gang.
Juan Hernandez, the second defendant, is charged in the drive-by shooting because if it weren’t for him, “this whole thing doesn’t even get started,” Scott said. And it didn’t end there, he said, referencing the chase that followed the shooting. Witnesses have testified that they saw the suspects’ car chasing the victim’s, both driving erratically through town and in circles around a neighborhood near Las Animas Veterans Park.
“We’re talking block after block after block, which goes into miles,” Scott said.
Juan Hernandez’s lawyer will present her closing argument Tuesday, after Squaglia concludes. Scott will make a rebuttal before Santa Clara County Superior Court Judge Hugh F. Mullin reads his final instructions and the case is sent to the jury.
