No Gun, No Witnesses, No Problem

Gustavo Orejel faces life in prison despite a total lack of evidence

Photo by James BunoanThe Orange County District Attorney's Office might consider sending the following official warning to all young male Latinos in the county: If you live in a gang-infested neighborhood, if you have relatives who are gang members, or if you look like a gang member, get out of town. Or better yet, surrender now, because we'll get you eventually.

Unfortunately, such a warning would arrive too late for Gustavo Orejel, a 21-year-old Santa Ana resident with no record of violent crime. He faces life in prison for allegedly shooting a gun at a car full of gang members who had just fired several bullets at his house. Not surprisingly, the alleged shooting victims have never been identified.

For taking potshots at gang members who had just shot at his house, a white, middle-class gun owner might not even be charged with a crime, especially if there was no evidence anyone was hurt. Yet Orejel was charged despite the absence of any victim or even any physical evidence—fingerprints, gun residue, or even the gun itself—implicating him in the crime.

Orejel's brother-in-law, who also lived in the house, is a self-acknowledged member of the Alley Boys street gang, and Gustavo Orejel had been previously arrested with a gun in a car with other Alley Boys gang members. Police say that's evidence he's a gang member—a charge he denies.

The gang allegation is critical because it adds additional penalties in the event of a conviction.

More importantly, the charge of gang membership explains why, more than a year after his arrest and less than a month before his case goes to court, the only witnesses in the case remain anonymous. They're shielded by state law, which protects the identity of eyewitnesses who testify against suspected gang members.

On June 30, 2002, Orejel allegedly fired two shots outside his home in the 1600 block of South Woodland Place in Santa Ana. Police responding to the scene say they found two bullets in Orejel's house as well as bullet casings on the front lawn, but found no physical evidence linking Orejel or anyone else to the crime. Hours after the shooting, officers interviewed a witness who said he heard several gunshots, saw a dark-colored Ford Thunderbird leave the area, and then saw a Latino male in his early 20s who had a shaved head and was wearing a blue and white checkered shirt.

The witness identified the suspect as Orejel, and said Orejel was carrying a handgun and had left the scene in another car, but apparently didn't see him fire the gun. Another witness who saw the man with the gun—and who also knew Orejel—was unable to identify Orejel as the suspect until 10 days later. That's when she accompanied the first witness and told police she was certain Orejel had fired at least one shot at the fleeing Thunderbird.

Two days later, Santa Ana police arrested Orejel on charges of actively participating in a street gang, carrying a loaded firearm in public, shooting at a vehicle, and carrying out those crimes on behalf of a street gang.

Orejel posted bail and now awaits a Feb. 2 trial date. That day will mark the second time the case has been set for trial. In December 2002, Santa Ana police investigator Donald Stow testified that his two witnesses had seen Orejel fire a gun, but he never mentioned that those witnesses actually saw Orejel shooting at anyone.

Because of the lack of physical evidence or testimony that Orejel shot at anyone, Superior Court Judge Francisco Briseño dismissed the most serious charge—shooting at a vehicle.

But on Feb. 25, 2003, the DA withdrew the case against Orejel and immediately filed a new case with the same charges. A month later, Stow testified that one of his secret witnesses did in fact see Orejel shooting at the Ford Thunderbird. But Stow admitted under cross-examination by James Crawford, then Orejel's defense attorney, that his eyewitness interview notes made no mention of any such sighting.

Orejel is now represented by Santa Ana lawyer Vincent LaBarbera, who says he still hasn't been able to interview the two witnesses who allegedly saw his client shooting a gun.

"The allegation against my client—who is gainfully employed and not in a gang—is that he shot at a car full of gang members who had just fired guns at his house," LaBarbera said. "But my client looks just like most of the young Hispanic males who live in his neighborhood. His hairstyle, clothing and body build are virtually the same as every other young Hispanic male on that block and certainly in his house. That's one problem.

"The other is that the law allows that eye-witnesses do not have to be revealed to the defense and I don't have the ability to examine them prior to trail," LaBarbera continued. "Anybody in any other situation would be allowed that right. Why should a young Hispanic man be restricted in this manner? The most unreliable evidence is eye-witness evidence, especially if a person is trying to identify something that they have seen in the middle of the night. . . . I don't have any particular axe to grind with the OC DA's office, because the law allows them to do this, even if it is fundamentally unfair."

There's a special unfairness to this case, however, that does involve the DA's office. Both Alison Gyves and Mark Geller, two county prosecutors involved in the Orejel case, witnessed a similar shooting. On May 20, 2003, Santa Ana gang-unit cop Derrick Watkins fired shots from an SUV on the way back to Orange County from the Staples Center in LA, where he and several companions had attended a concert featuring REO Speedwagon, Journey and Styx (see "A Tale of Two Shootings," Aug. 1). Gyves and Geller were among the passengers.

Despite those witnesses, Watkins won't be fired from his job or even charged with a crime. According to twistedbadge.com, a website run by activist Mike Madigan that tracks corruption in Orange County law enforcement, the LA District Attorney's office has opted against prosecuting Watkins. "According to our [source], the DA thought it would be too difficult to prove the cop shot a bullet, not a blank," Madigan reported.

"A blank?" Madigan asked. "Are gang officers allowed to carry blanks?"

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