More than two years ago, 22-year-old Abelino Hernandez was shot
twice by a gunman who pulled up to a Forest Street parking lot,
asked for directions, fired and fled.
Gilroy – More than two years ago, 22-year-old Abelino Hernandez was shot twice by a gunman who pulled up to a Forest Street parking lot, asked for directions, fired and fled.
Attorneys agree on that – and little else. Today, jurors are scheduled to deliberate on the case of Leon Martinez, 22, accused of trying to kill Hernandez to benefit the Norteño street gang.
Hernandez has identified Martinez as the driver who pulled up to the apartment complex Aug. 1, 2004, and asked him and two friends for directions. The three men didn’t speak English. When one man responded in Spanish, the driver drew a 44-caliber magnum revolver and fired four shots, wounding Hernandez. One bullet struck his side; a second ripped through his thigh.
Police chased Martinez by car and on foot, searching 13 Gilroy homes before they found him, locked in the bathroom of a stranger’s IOOF Avenue house. He later tested positive for methamphetamine.
At the time, police said the crime was likely gang-motivated, an attack on an innocent Spanish-speaking “scrap” to intimidate neighbors and raise the profile of Norteños, U.S.-born gang-bangers who wear red and speak English. Witnesses said the driver wore a red cap and red pants.
Prosecutor Stuart Scott called the case “pretty straightforward.”
“You cap two rounds off a 44 magnum, barely leaving the guy alive – you intended to kill someone,” Scott told jurors Tuesday, in his closing remarks. Later, he added, “Why wear a red stocking cap in August in Gilroy, besides to indicate you’re a member of a gang?”
But the arguments have been anything but straightforward, as defense attorney Steve DeFilippis questioned every aspect of the DA’s case: Martinez’ gang affiliation, whether it was he who fired the shots, how badly Hernandez was hurt, whether the gunman meant to kill Hernandez, and even whether the Norteños constitute a criminal street gang.
“It’s all circumstantial evidence,” said DeFilippis in his closing argument. “[Martinez] has not been established as the shooter.”
DNA evidence links Martinez to a red stocking cap. His fingerprints were found on the gun. Gunshot residue speckled his clothing and hand. But DeFilippis argued that the fingerprints weren’t in the right place, if Martinez had fired the gun, and other prints were found on the weapon. Evidence of other prints, he complained, hadn’t been presented to the jury. One witness failed to identify Martinez as the gunman on Aug. 1 (though the witness later picked Martinez in a photo lineup), and there’s “not enough gunshot residue,” DeFilippis argued, for him to have fired the shots. Two of the three witnesses at the scene didn’t testify at the trial – a suspicious omission, DeFilippis suggested.
“Something happened out there,” he said, but “we’re missing two key players.”
Scott scoffed at the suggestion that someone else had fired the gun. There’s “not a single shred of evidence that anyone besides the defendant is in that car,” the deputy district attorney told jurors.
Whoever shot that gun, DeFilippis added, didn’t intend to kill their victim, and wasn’t promoting a gang by doing it.
“The shooter’s got three shots left, but he doesn’t get out and finish him off,” argued DeFilippis. “He’s at point-blank range, but he doesn’t hit the vital organs.”
Displaying gruesome photos of Hernandez’ injuries, Scott described the man’s ongoing pain and trauma, calling him “the luckiest unlucky guy in the world.” One photo, of Hernandez in a hospital bed, shows the white bandages wrapping his thigh and his side, splotched with red bloodstains like blossoms. Another displays the exit wound on his thigh, an ugly tear in the flesh.
“Norteños exist to have violent confrontations with Sureños and scraps,” Scott argued, in an attempt to establish Martinez’ intent to kill. Hernandez was an ideal “scrap,” claimed Scott, and Forest Street was prime territory for a Norteño seeking a target. “If you’re gonna go duck-hunting, are you going to go duck-hunting in downtown San Jose?”
Today, Scott will counter the defense’s closing argument before jurors deliberate on the case, deciding whether Martinez is guilty of attempted murder, discharging a firearm from a vehicle with intent to cause great bodily injury, and doing both to benefit a criminal street gang. Jurors gather at the San Martin courthouse at 8:45am.
