MODESTO -- A defense attorney on Monday told the jury weighing the fate of three men charged in a double-murder case that the prosecution's key witness is not credible.
Eric Arguello, 21, Victor Zapien, 24, and Kelly Valle, 28, are on trial. Authorities allege that the defendants are responsible for the deaths of Christopher Diaz, 20, and Mark Ochoa, 19, at a home in north Modesto in 2009. David Ferrel, 33, also has been charged with murder, but he will be tried separately.
Stephen Foley, Zapien's defense attorney, focused part of his closing argument on the credibility of Wil-liam Harris. He was with Diaz and Ochoa when they were shot shortly after midnight Aug. 31, 2009.
"Mr. Harris was their case," Foley said of the prosecution. "The problem is he's told the story multiple times to multiple parties, and they don't line up."
In her rebuttal argument, Deputy District Attorney Marlisa Ferreira said there is plenty of physical evidence and testimony from witnesses other than Harris that indicates the defendants intended to gun down Diaz and Ochoa.
"This case doesn't rest on Billy Harris," the prosecutor told the jury. She also said the evidence doesn't support the defendants' claim that they fired in self- defense.
Closing arguments in the trial concluded Monday afternoon. The jury will return to the courtroom Wednesday morning to receive instructions from Stanislaus County Superior Court Judge Nancy Ashley before deliberations begin.
Diaz and Ochoa were shot in front of Diaz's home in the 2600 block of Maxine Drive, north of Floyd Avenue and west of Coffee Road.
The attorneys told jurors Monday that there are two versions of what happened when the gunfire started. One version came from Harris. The other came from Valle and Ferrel, who testified in the trial.
Harris testified that Arguello and Valle arrived with two masked men. He said Arguello was not armed, but the others walked up holding guns. Then, one of them asked, "Who's Chris?" Harris said on the stand.
Already met?
Foley pointed to that testimony as an example of the inconsistencies in Harris' account. He told the jury that Zapien and Ferrel knew Diaz already. Arguello knew Diaz and Ochoa well, and Valle had a encounter with the two men earlier that night.
"(Harris) is not credible," Foley argued. "He's telling half-truths constantly."
Harris testified that the gunmen held them at gunpoint, taunting them before Valle fired the first shot at Ochoa's chest. Gunfire erupted, and Harris pushed away from the gunman who held him and escaped without injury.
Valle and Ferrel testified that they arrived at the home thinking they could settle the dispute between Valle and Ochoa without gunfire.
Ferrel said he saw Diaz pull out a gun first, so he fired to protect his friends. Valle said Ochoa fired first at him, but missed him from about 3 to 5 feet away.
Close-range dispute
Ferreira told the jury that Valle's story is not plausible, saying it's not likely that Ochoa or anyone else would've missed when firing a gun at such a close range.
"We do agree on one thing," Ferreira told the jurors. "Do not leave your common sense at the door."
It will be up to the jury of 10 women and two men to decide which version they believe. The trial started in May but has been delayed for various reasons.
Even though the trial has dragged on for almost five months, Martin Baker, Arguello's defense attorney asked the jury not to rush to a decision.
"Please do not hurry to a verdict," Baker told them.
He emphasized the fact that testimony indicates his client was not armed during the encounter and never fired a gun, even though Arguello has been charged with murder like the others. Baker urged the jury to judge each defendant individually.
Along with the murder charge, the four defendants are charged with attempted murder of Harris and attempted murder of a police officer. Authorities allege that shots were fired at pursuing police as the defendants tried to evade capture.
Ferrel testified that he fired a couple of shots into the air to get a patrol car to back off. He also said his gun accidentally fired when he jumped over a fence and fell face first.
Recording played
The prosecutor played for the jury a recording of the pursuing officer speaking to a dispatcher during the chase. Ferreira told the jury the officer was clear what he saw when he said, "They're shooting at us!"
She said the officer reported to the dispatcher that he saw the man who got out of the pickup's back seat on the passenger side turn around and fire a gun at him before escaping into the neighborhood. Investigators found a shell casing in the street.
"It's not in the backyard like the defendant said," Ferreira argued. "It's in the street."
Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.
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