Would Suspicious Eyewitness Statement Wreck A Prosecutor's Shooting Case?

Lying on a Santa Ana sidewalk beside two of his dead Walnut Street gang pals–ages 14 and 15, bleeding profusely from a gunshot wound to the stomach and believing he was dying late on a Dec. 17, 2006 afternoon, Fernando Garcia twice told police the name of his killer: “Juan Roldan.”

But Garcia, 16, didn't die. He fell into a coma and emerged months later. After consulting with family members who expressed fear that Roldan, an intensely violent Lopers gang shot caller, would seek retaliation, Garcia changed his story.

Can a highly suspicious flip-flop undermine a successful homicide prosecution?

His shooter, Garcia now claimed, had been Oiram Roman Ayala–even though key facts didn't necessarily support the new tale. For example, Ayala stood more than a foot shorter than Roldan and was a far less powerful gangster. Never mind too that cops recovered the .38-caliber revolver used in the senseless turf war incident inside Roldan's house or that the gang boss shot and wounded another rival underworld character 11 days later.

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For the deaths of Angel Secundino and Gabriel Perez, prosecutors charged Ayala with eight felony counts. A jury didn't buy the government's case, declaring him not guilty on half the charges and themselves hopelessly deadlocked on the other ones.

At a 2010 re-trial, Superior Court Judge William R. Froeberg let Senior Deputy District Attorney Colleen Crommett show jurors a photograph that hadn't been introduced during the first attempt to convict Ayala. It depicted him huddled with known gang members and holding a gun. Crommett insisted she'd found the killer. This jury issued guilty verdicts and Froeberg imposed a severe prison punishment.

After unsuccessful attempts to overturn the case with unsympathetic state court officials, David M. McKinney, Ayala's appellate lawyer, filed a 2013 brief with federal judges that claimed the conviction was a travesty of justice. McKinney argued there had been no legal basis for the introduction of the photo and that it improperly inflamed the second citizens' panel to make a decision the first group couldn't do. That stance wasn't unreasonable. Showing Ayala with gangster didn't advance facts of the case because the defendant never disputed his association with the Lopers and the gun in the image had no connection to the killings.

“There was no credible evidence linking Ayala to the shootings,” McKinney declared. “There was no physical evidence; there was no blood or fingerprint evidence and he was not linked to a gun. Furthermore, the most reliable source of what took place was Fernando Garcia and what were deemed to have been his dying declarations at the time of the shooting–dying declarations being trustworthy and reliable to the point they are accepted as exceptions to the hearsay rule that would otherwise preclude such statements.”

McKinney opened a second assault on the case: Crommett erroneously argued during the second trial that it didn't matter if Roldan or Ayala had been the shooter. In her view, both were legally responsible as murders under a natural and probable consequences theory. In other words, according to the prosecutor, Ayala was just as guilty even if he hadn't fire a shot because he should have known that merely encountering rival gang members and asking “Where you from?” could result in homicide.

In McKinney's view, however, Crommett failed to present any evidence that murder was the “clearly foreseeable” or probable outcome of teenage hoodlums asking other teenage hoodlums to name their gang affiliation, a situation that happens daily through the region without resulting in deaths. He said the California Supreme Court found in a separate but similar fatal gang case that the natural and probable consequences theory applied because after opposing gangsters shouted their affiliations, there had been a violent fist fight before the killing. In his client's case, there had not been the necessary second step–a fight–to trigger the theory holding Ayala should have anticipated the killings, the defense lawyer argued.

But U.S. Magistrate Judge Louise A. LaMothe studied the case extensively and didn't reach McKinney's conclusions. In a June report, LaMothe said she was legally bound to interpret alleged facts in the most favorable light to the government and must accept a California Court of Appeal's earlier decision that the natural and probable consequences theory applied to Ayala. “This court cannot find [that jury instruction] rendered the petitioner's trial fundamentally unfair where it was correct under state law and the evidence supported it,” ruled LaMothe.

Late last month, U.S. District Court Judge George H. King in Los Angeles accepted those findings and closed the case.

Ayala, now 26, will continue to serve his sentence inside the California Men's Colony in San Luis Obispo: two life terms plus another 107 years without the possibility of parole.

Roldan, 25, is also serving a life in prison punishment at notorious Pelican Bay State Prison, a hellhole serial killers fear.

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R. Scott Moxley

CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.