 Karl Mondon/Bay Area News Group
A green Toyota 4Runner drove down Mastic Street, then did a U-turn and made another pass. The SUV stopped in front of Rodriguez, who approached the vehicle. At first, Rodriguez thought a friend was driving. But then the driver fired a single shot, hitting Rodriguez, and the 4Runner sped off. A few hours later, the vehicle was found burned a few blocks away. It had been stolen on April 2.
Rodriguez was taken to the hospital. His injury would leave him paralyzed and in a wheelchair. In his first interview with police, he said that he did not recognize the shooter and had never seen him before, but that he must have been a Sureño gang member, because Rodriguez had been wearing a large belt buckle with the letter “N” and red clothing that signified his association with the Norteño gang. A friend who was across the street told police he didn’t see the faces of any of the people in the Toyota, but that the people in the 4Runner were wearing blue. Another person standing with that friend said the shooter had a shaved head.
The general description given by Rodriguez, Gonzalez and Millan, who had the best view of the shooting, was not very detailed. They said the shooter was a Hispanic male, around 17-24 years old, with short hair, a thin build, medium to light complexion, a small amount of facial hair, maybe a thin mustache or goatee, and wearing either a blue or white T-shirt or a gray sweatshirt.
On April 7, 23-year-old Lionel Rubalcava was cruising through the same neighborhood in his black GMC pickup after stopping by a friend’s house. He saw Jennifer Rodriguez, the victim’s sister, in the front yard, and although he didn’t know her, he pulled over to flirt with her and try to ask her out. While they were talking, Rodriguez told Rubalcava about the shooting, then quickly yelled out, “Call the cops.” Rubalcava told her he had nothing to do with the shooting and drove off. Rodriguez would testify that the police had told her to call if anything strange happened in the aftermath of her brother’s shooting.
Gonzalez was also standing outside at the time. He was stopped by police later that day and told them that he had seen the GMC on the day of the shooting, and that the driver of the truck might have been the driver of the 4Runner. He showed police where the truck usually parked in the neighborhood, and another man told police that the truck was Rubalcava’s.
The police created a six-pack photo array that included Rubalcava’s mugshot. His photo had a different background than the fillers. In addition, he was the only person in the array who plausibly resembled the descriptions of the shooter: a young Hispanic male with short hair, medium complexion, and a thin mustache. The array was shown to Gonzalez, Jennifer Rodriguez, Raymond Rodriguez and Eric Millan. Each of them selected Rubalcava, and he was arrested the next day and charged with attempted murder.
Rubalcava had an alibi. He said that at the time of the shooting, he was already on his way to Hollister, a town about 50 miles south of San Jose, to meet a woman for a movie that started at 7 p.m. He said the woman had insisted he leave at 5, because of the traffic, and he had spent most of the day getting ready for his date. He had called her at about 6:22 to tell her he was already at the McDonald’s in Hollister, where they were to meet. The woman, Stephanie Leon, arrived a few minutes later, and they went to the movies. He gave the police Leon’s cellphone and pager numbers, and she confirmed that she had had a date with Rubalcava, although she didn’t know his last name and said that he had told her his first name was James. Rubalcava would testify that he did so because he was talking to a lot of women and didn’t want Leon to think he was a “player.” In addition, his child’s mother lived in Hollister, and Rubalcava didn’t word to get back to her. Leon had kept the ticket stubs, and those were also given to the police.
The trial began on November 2003 in Santa Clara Superior Court. Both Rodriguez and his brother, Millan, who was 12 at the time of the shooting, testified that they were positive that Rubalcava was the shooter. Gonzalez had recanted his identification prior to trial. He testified that when he saw Rubalcava in person at a pre-trial hearing, he realized he wasn’t the shooter and told detectives. In addition, he testified that he had never been certain of his identification, that he initially told officers only that Rubalcava “looked like” the shooter. But the officer who had shown him the photo array said Gonzalez had been positive about his identification.
Rubalcava and Leon both testified, and they told the jurors about the date and the series of calls and pages they had exchanged during the evening of April 5, 2002.
The prosecution’s theory was that the shooting was gang-related. The prosecutor argued that Rubalcava, who was loosely affiliated with a gang called West Side Mob, shot Rodriguez, whom he didn’t know, to send a message to Gonzalez, who was affiliated with a gang called Varrio Horseshoe, or VHS. To explain gang activities in general and Rubalcava’s actions in particular, the state relied on Detective Rafael Nieves, a gang expert. He told the jurors about the feud between the West Side Mob and VHS, and said matter-of-factly that people sometimes got shot for standing next to the wrong people. Most of what he knew about San Jose’s gang structure he heard from gang members, and that knowledge was not often written down or verified. Nieves acknowledged that no gang slogans had been yelled or gang signs flashed after the shooting; nor had there been any graffiti about the event.
Rubalcava’s strongest exculpatory evidence was the cellular communication records, which showed his contact with Leon and roughly tracked his progress as he made his way south during Friday evening rush hour from San Jose to Hollister. Records showed that at 6:22 p.m., 53 minutes after the 911 call about the shooting, Rubalcava’s cell phone pinged off the cell tower in downtown Hollister. The towers don’t provide an exact location for the phone, but a communications expert who testified for Rubalcava said that the tower had a northern range of 10 miles, meaning Rubalcava was no more than 10 miles from the center of town when he made that call.
But during closing arguments, the prosecutor misstated that testimony. He said that Rubalcava was at least, rather than at most, 10 miles away from downtown Hollister, giving him enough time to shoot Rodriguez, switch cars and drive the 50 miles to meet Leon. The misstatement was not challenged by Rubalcava’s attorney.
The jurors began deliberating on Friday, November 21, and they kept deliberating the following Monday and Tuesday. Thanksgiving was now two days away, and one of the jurors told the judge he had a flight on Wednesday. The judge told the jurors to keep deliberating. Wednesday morning, the jurors asked for clarity on the judge’s alibi instructions. He said he could not provide further information. Just before noon, on November 26, 2003, the jury came back with a guilty verdict. Rubalcava was sentenced to 31 years to life in prison.
Rubalcava unsuccessfully appealed his conviction, first through the California courts, and then through the federal courts. Part of his claim was that the gang expert’s testimony had been prejudicial. In addition, Rodriguez had recanted his testimony in 2005. In the sworn declaration, Rodriguez said he had always told police he was unsure about his identification, and that he had simply said Rubalcava looked like the person who shot him. The officers, however, had assured him there was other evidence that bolstered the identification. As a result, Rodriguez said, he had testified falsely as to his certainty that Rubalcava was the shooter.
“I made this declaration because I cannot move forward with my life until the truth is told and this matter is straightened out,” he said. “The person who really shot me deserves to be in prison. It is not Lionel Rubalcava.”
In denying his appeals, the courts noted that the testimony of Rodriguez’s little brother had not been challenged and that Rubalcava had opened the door for the expert testimony by acknowledging being in a gang.
Although Rubalcava’s appeals had stalled, he received an unexpected break. In 2016, the California Supreme Court ruled that out-of-court statements that support an expert’s opinion need to be proven independently or else they violate a defendant’s Sixth Amendment rights to confront his accusers. The ruling allowed Rubalcava and his attorneys at the Northern California Innocence Project to file a new motion for a writ of habeas corpus on October 15, 2018.
In that motion, Rubalcava’s legal team claimed that Nieves’s testimony was precisely the type of testimony that the California Supreme Court now disallowed. The detective was the first and last witness for the prosecution. “In a sea of unreliable eyewitness testimony that provided no possible reason Mr. Rubalcava would have shot Mr. Rodriguez,” NCIP Supervising Attorney Paige Kaneb wrote, “Detective Nieves’ hearsay was integral to proving that Mr. Rubalcava was the shooter.”
The motion also claimed Rubalcava’s trial attorney had failed to adequately prepare and to challenge the state’s eyewitnesses. Even before his 2005 recantation, Rodriguez had told several people, including his mother, that he wasn’t sure Rubalcava was the shooter. The police had those reports and had given them to Rubalcava’s attorney. Separately, the police had a video of Eric Millan where he expressed uncertainty about who shot his brother because he hadn’t been paying attention at the time. The attorney had a copy of that report, but failed to confront Millan with the discrepancy. Gonzalez’s recantation had been attacked by prosecutors, who had a police officer testify that Gonzalez had initially been sure about his identification of Rubalcava. But he hadn’t. In an interview recorded by the police, Gonzalez expressed doubt, but the trial attorney failed to introduce that corroborating statement to impeach the police officer.
In addition, Rubalcava’s motion noted that the state had failed to disclose arrangements it had made with Rodriguez and another witness through California’s witness-protection program. After Rodriguez’s initial hesitancy about the shooter’s identity, he received county-provided housing. His testimony became sharper. Another witness, who testified that he was unsure what he had seen, in the process bolstering the state’s theory of a senseless gang-related shooting, received $15,000 to help with rent and incidentals.
The NCIP had been investigating Rubalcava’s case prior to the Sanchez ruling. It had approached the Conviction Integrity Unit at the Santa Clara County District Attorney’s Office several years earlier with its concerns about the conviction and suggested a collaborative effort. But the CIU’s staff said it made more sense for the NCIP to work independently and then share those findings of new evidence or misconduct. After that presentation was made, the CIU began its own investigation. Prosecutor David Angel, who heads the Santa Clara CIU, said “I don’t think there was really a lot that one would call new evidence, but there was an accumulation of problems in the evidence that gave me cause for concern.”
Eventually, the district attorney joined with the NCIP in asking that Rubalcava’s conviction be vacated because of the problems with the eyewitness identifications. In the motion, District Attorney Jeff Rosen did not address the alleged disclosure violations or the claims of ineffective assistance of counsel. And while not addressing whether Nieves’s testimony violated hearsay rules, it did note that the gang expert “did not provide a specific motive for this case or any reason to tie this shooting to Mr. Rubalcava.” But Rosen wrote that “the integrity of the trial had collapsed” and that the “circumstances and confidences in the identification present to the jury was significantly less reliable than in reality.”
The charges against Rubalcava were dismissed by Judge Eric Geffon of Santa Clara Superior Court on May 15, 2019.
According to the San Jose Mercury News, Rubalcava’s parents went bankrupt paying for his legal representation and visiting him at prisons around the state. Speaking at the courthouse, Rubalcava thanked his friends and family for sticking with him. “Them, and the fact that I knew I was innocent,” he said, “that kept me going, hoping the evidence at some point would prove that.”
On January 2, 2020, Rubalcava was awarded $874,440 in compensation from the California Victim Compensation Board for his wrongful conviction. In June 2020, he filed a federal civil rights lawsuit seeking damages for his wrongful conviction.
– Ken Otterbourg
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