On August 28, 2001, 37-year-old Roy Flores left his home in Salinas, California to get some quarters for the laundry. He was walking through a parking area of an apartment building when he was confronted by a man and began to run. The man drew a pistol, according to a witness, and gave chase. A few seconds later, three shots were fired and Flores was killed.
A few days later, Mirna Cruz, who lived in an apartment near the parking area, went to police to complain about a problem she was having with her apartment manager. A friend who went with her to act as an interpreter told police that Cruz saw the shooting.
Cruz then told police that she saw a man she called “Pancho”—whom she knew casually from the neighborhood—confronts Flores, chase him and fire one shot in his direction. She said she heard two more shots, but a parked car blocked her view and she saw nothing more. She said the gunman was wearing blue pants and a white shirt and had short hair.
Because Flores had been a former member of the Norteno street gang, police asked her to view photographs of known gang members. She selected the photograph of 26-year-old Francisco Hernandez, a member of the Vagos street gang that she knew from the neighborhood, as the gunman.
On September 4, 2001, police went to the address where Hernandez lived. When they approached, he saw them and fled through a gangway, but was arrested climbing over a fence. An officer recovered a loaded handgun from near where Hernandez had fled. A bag of bullets was found in the apartment.
Police also detained four other Vagos street gang members at the building. Among them were Gustavo Orozco, who lived in the apartment with Hernandez and was stopped as he attempted to jump out of a window of Hernandez’s apartment, and Jorge Serrano.
Hernandez, who sported a gang tattoo on the back of his shaved head, was charged with murder and possession of a weapon, along with gang affiliation. None of the other four men arrested that day were charged in the crime.
Hernandez went on trial in Monterey County Superior Court in December 2002.
Cruz identified him as the man she saw chasing Flores and firing the first shot. She said she did not see Flores get shot, but heard two more shots fired.
She said she had seen Hernandez earlier in the day with Orozco and that he had a shiny revolver. She said she knew Orozco, but only slightly. She said he had been to her apartment a couple of times, once to borrow an iron to press some clothing. She denied he was a friend.
A crime lab analyst testified that when he examined the gun recovered after Hernandez was arrested, he discovered that bullets obstructed the barrel. When he attempted to remove the bullets, the barrel was damaged to such a degree that any attempt to compare bullets fired from it was useless.
The defense called several witnesses and attempted to show that the gunman may have been Serrano, whose wallet was found at the scene of the shooting, or Orozco.
After his wallet was found, Serrano had told police he happened upon the shooting right after it happened and when a car on the street sped up toward him, he fled, dropping his wallet. He had denied any involvement in the crime.
But a defense witness testified that the gunman was wearing a black beanie, white T-shirt and baggy navy long pants—a different clothing description than was given by Cruz—and that the gunman resembled Jorge Serrano—whom she saw in the courthouse during the trial.
Another defense witness said the gunman was 18 or 19 years old, wearing pants and a navy blue T-shirt with a number on it—also different from Cruz’s description.
On December 17, 2002, after five days of deliberation, the jury convicted Hernandez on all counts.
After the conviction, but before sentencing, Cruz contacted the Monterey County District Attorney’s Office and spoke to the investigator on the case. She wanted help in locating Orozco because he was the father of her child and she wanted to obtain child support.
The information was passed to Hernandez’s defense attorney, who, on April 11, 2003, filed a motion for a new trial alleging that Cruz had lied at trial when she said Orozco was not a friend. The information about their relationship could have been used to impeach her testimony, the defense contended.
The motion for new trial was denied and Hernandez was sentenced to 48 years to life in prison on July 16, 2003.
On May 14, 2004, the California Court of Appeals reversed the conviction and ordered a new trial. The court found that the discovery that Orozco was the father of one of her children gave her a motive to lie and would have been valuable impeachment in a case that hinged almost solely on Cruz’s testimony.
As the case moved toward a retrial, the defense found a witness who said she saw two men running from the shooting and that neither was Hernandez. Moreover, the defense found two more witnesses who were with Cruz at the time of the shooting and both identified Orozco as being at the scene of the crime.
On December 2, 2005, the murder charge was dismissed by the prosecution. Hernandez pleaded guilty to possession of the gun—which was never linked to the crime—and received six years in prison.
– Maurice Possley